On appeal from Superior Court, Law Division, Burlington County.
Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Plaintiff Wilma E. Muench suffered serious injuries on the night of May 4, 1962 while walking on the left (east) side of Lenape Trail in the Borough of Medford Lakes. She stepped aside to avoid an oncoming car and fell several feet to the bed of a stream which ran beneath the road. In the subsequent suit to recover for her injuries and her husband's per quod damages, there were dismissals as to all the named defendants except the County of Burlington (county). The jury returned a verdict of no cause of action in favor of the latter and plaintiffs appeal.
Plaintiffs reside on Lenape Trail, Medford Lakes, about .6 of a mile from the scene of the accident. From the testimony the jury could have found that Lenape Trail was a municipally maintained street about one mile in length running in a general north-south direction which crossed a stream known as Ballinger Creek by means of a structure maintained by the county which was designated on the county engineer's bridge record as Bridge No. D5.133.
According to the record in question, the crossing over the stream originally had been by means of a timber stringer bridge, 14 feet long, with stone abutments and wings, a wooden deck and wooden guardrails. In 1927 the wooden bridge was replaced by 40 feet of 36" corrugated pipe, surmounted by an earthen fill retained by concrete head walls. By the time of the accident a 36" concrete pipe had been (prior to 1952) substituted and the retaining wall was constructed of concrete topped by Belgian blocks. The water in the creek had an approximate depth of 1 I/2 feet at the time of the accident. There was a low wooden dam where the creek entered the pipe. There was no railing on the east side of Lenape Trail at the point where Mrs. Muench allegedly fell.
The right-of-way of Lenape Trail was 66 feet wide. The traveled portion was two lanes wide, improved with an oiled surface and marked with a center line (which corresponded with the center of the right-of-way) at the point where it crossed the creek. The pipe was apparently not centered in the right-of-way, the center line of the road being 15 feet from the head wall on the east side and 26 feet from the corresponding head wall on the west. Prior to the accident, the last inspection of the structure by the county engineer's office had taken place in 1952.
On the evening of the accident, shortly past midnight, Mrs. Muench was walking in a southerly direction on the east side of Lenape Trail towards her home. As she was proceeding a car approached her from the south traveling fast. It passed so closely that she was forced to step aside, and in doing so fell down the bank beyond the retaining wall into the creek. The street was not lighted, there was no sidewalk and the foliage was heavy and close to the road.
Although the pretrial order had listed as issues "negligence, contributory negligence, governmental immunity, contribution, ownership of bridge and Lenape Trail, dominion and control of the bridge and Lenape Trail," the case was submitted to the jury on the plaintiffs' theory that the county had been negligent in the performance of its duty under the Bridge Act, R.S. 27:19-1 et seq., and the charge was keyed to that statute.
"The board of chosen freeholders may construct, or acquire by gift, purchase or condemnation, and maintain and operate, and widen when necessary, viaducts and bridges, including drawbridges, in the county, when and where the public convenience requires, and keep all viaducts and bridges wholly within the county in repair and in safe condition for public travel." (Emphasis added)
Prior to 1860 no action could lie by an individual against a county for injuries sustained in consequence of the failure to keep a county bridge in ...