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Miehl v. Darpino

Decided: January 22, 1968.

THEODORE MIEHL, PLAINTIFF-RESPONDENT,
v.
JERRY DARPINO, DEFENDANT, AND THE CITY OF HAMMONTON, DEFENDANT-APPELLANT



Kilkenny, Carton and Fritz. The opinion of the court was delivered by Fritz, J.s.c. (temporarily assigned).

Fritz

Defendant City of Hammonton appeals from a judgment entered against it and in favor of plaintiff upon a jury verdict, predicated upon certain municipal activities in connection with snow removal.

On January 13, 1964 a heavy snow fell on Hammonton. The blizzard was of such intensity that the assistant chairman of defendant's highway committee, in the absence of the chairman, authorized the hiring of independent local contractors to assist the municipal highway department in cleaning and clearing the snow from the streets throughout the community. This action was confirmed the same day by resolution of the municipal council.

The accident which produced this litigation occurred ten days later on January 23, 1964, at the intersection of Bellevue Avenue and Second Street. Bellevue Avenue is a portion of State Highway 54 where it passes through Hammonton. Second Street is a local street. During and immediately after the snowstorm the State Highway Department had undertaken

to plow Bellevue Avenue, and the municipality assumed the responsibility for plowing the "side streets," of which Second Street was one.

The evidence is sufficient to support a jury finding that an agent of the municipality "helped" the State Highway Department in its efforts, and that there were representatives of the municipality present at this particular intersection during both state and municipal activity at the time of and following the snowstorm. It is clear that the town undertook to remove the snow, including the snow which was plowed by the State.

The record also fairly supports a factual determination that a residual of snow remained at this intersection, piled partly on the sidewalk and extending over the curb and into the street. Plaintiff testified that on January 23 this residual at the corner of Bellevue and Second "went around the corner" and at its highest point near the center was 2 1/2 to 3 feet high. He stated that a "small, very narrow opening" existed at the corner, apparently a defile created by pedestrians in the ten days between the storm and the accident in question.

Plaintiff's testimony as to the manner in which the accident happened is substantially uncontroverted. He stepped from the sidewalk through the narrow opening in the snowbank to the street, where he waited for some cars to pass. Looking to his right he noticed a car coming from the west on Bellevue Avenue and turning left into North Second Street "towards that spot where I was standing." This car, driven by one Darpino, was approximately 10 to 12 feet away when the plaintiff first saw it. Plaintiff testified:

"I beared to the left to try to get around on the side of this large pile of snow. I tried to escape the car coming, and that is when it was all over. I had been struck with a very glancing blow. It wasn't - -."

He further characterized his predicament as one of being trapped between the pile of snow and the car. He said that

prior to his seeing the car coming toward him he was on the roadway and not on any ice, and that it was the impact of the car which ...


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