Goldmann, Kilkenny and Carton.
Plaintiffs Anne Bennett and her husband William brought this action to recover damages for personal injuries sustained when she fell on an up-raised portion of the sidewalk in front of premises owned by defendant Gordon in defendant borough. The trial court granted an involuntary dismissal as to defendant-property owner Gordon. The jury awarded damages to plaintiffs. Defendant borough appeals from the resultant judgment.
The facts are simple and essentially undisputed. About 9 P.M. on May 1, 1965 Mrs. Bennett, while on her way to visit a neighbor a few doors down Hillman Drive, tripped and fell over a concrete slab upraised about three inches higher than the rest of the sidewalk fronting on defendant Gordon's property. She testified that although she was looking "down ahead" of her as she walked she did not see the raised slab. Acknowledging that she had prior knowledge of the condition of the sidewalk, she said that the street was dark on the night of the accident, that she "was not thinking about" the raised slab, and "didn't pay any attention to it." It seems conceded by all parties that a tree, planted over 25 years ago by defendant Gordon, caused the sidewalk to heave at the point where plaintiff fell.
East Paterson had adopted an ordinance in 1953 creating a Shade Tree Commission. The terms of that ordinance provided that the Shade Tree Commission "shall have powers by virtue of the provisions * * * of N.J.S.A.
40:64-1 to 14." N.J.S.A. 40:64-5 provides, among other things, that such a Shade Tree Commission shall have the power to:
"a. Exercise full and exclusive control over the regulation, planting and care of shade and ornamental trees and shrubbery now located, or which may hereafter be planted in any public highway * * * including the planting, trimming, spraying, care and protection thereof;
b. Regulate and control the use of the ground surrounding the same, so far as may be necessary for their proper growth, care and protection;
c. Move or require the removal of any tree, or part thereof, dangerous to public safety;
e. Administer treatment to, or remove, any tree situate upon private property which is believed to harbour a disease or insects readily communicable to neighboring healthy trees in the care of the municipality and enter upon private property for that purpose, with the consent of the owner thereof * * *."
The ordinance made it unlawful for any person to do certain specified acts, including removing, cutting, breaking or injuring any tree or part thereof, in any way so as to injure or destroy any shade tree. It also prohibited any person from planting, taking down or removing any shade tree without first having obtained written permission from the Commission to do so. The Commission was authorized to remove or require the removal of any tree or part thereof which was dangerous to public safety. Any person violating any of the provisions of the ordinance was made subject to a fine not exceeding $100.
Roy Roth, a member of the Shade Tree Commission, testified that the Borough had engaged independent contractors to work on the trees. He said that the only instructions given by the Commission were for the trimming of the trees to a height of 14 feet, painting them and removing the branches and debris. The reason for the 14-foot regulation was to provide clearance for garbage trucks and large trucks going through the ...