Rupp v. Burgess

56 A. 166, 70 N.J.L. 7, 1903 N.J. Sup. Ct. LEXIS 8

• Court: Supreme Court of New Jersey
• Decided: November 9, 1903
• Status: Published

Opinion

The opinion of the court was delivered by

Gummere, Chief Justice.

The declaration contains two counts, the first of which sets out that the defendant was the owner of -a certain lot fronting on Newton street, in the city of Newark, and that while owning and -occupying this lot he wrongfully and- knowingly permitted the flagstones with which the sidewalk in front of his property was covered to become and remain in a broken, insecure and dilapidated condition, and that by reason of such conduct the female plaintiff, who was then passing along the street upon this portion of the sidewalk, without any negligence on her part, stumbled and fell over the said broken flagstones and was seriously injured by her fall.

The second count alleges the ownership and occupation by the defendant of the - said premises, and then states that immediately under the pavement on the sidewalk in front of said premises, and covered by said pavement, there was, at the time of the accident to the female plaintiff therein set forth, a certain drain, trench or gutter, intended for the pássage of surface water, extending from the messuage of the- defendant- to the curbstone .of -the said street, and belonging to the said messuage. Then follows a statement that the defendant wrongfully and knowingly permitted the pavement which covered the said trench or gutter to become and remain in a broken, insecure and dilapidated condition, so that the said gutter was insufficiently and ineffectively covered,, and that by reason- thereof the. said female plaintiff, who was then passing along the street upon the said portion of said sidewalk, necessarily and unavoidably stumbled and fell over the broken pavement into the said trench, whereby she was seriously injured.

The defendant has demurred separately to each count.

The first count, plainly, discloses no cause of action. It is based upon the assumption that the owner and occupant of premises abutting upon a public street is- under a legal duty to keep in repair the sidewalk in front of his property. But no such obligation rests upon him, unless by virtue of the requirements of a city or municipal ordinance (Dill. Mun. Corp., § 1012; Weller v. McCormick, 18 Vroom 397), and the declaration fails to allege the existence of any such requirement.

And even when the duty of-repairing .sidewalks is imposed upon the abutting owner by statute or ordinance, the failure to perform that duty does not render the owner responsible to individuals for injuries received by them, resulting from defects in the sidewalk due to want of repair. ' The only liability which rests upon the property owner for the nonperformance of such a duty is the penalty provided by the statute or ordinance. Fielders v. New Jersey Street Railway Co., 39 Vroom 343, 352, and cases cited.

The second count, however, although loosely drawn, we think may stand. It states, substantially, that a drain or trench, which was an appurtenant to the premises of the defendant^ and used for the purpose of carrying the surface water therefrom, extended across the sidewalk to the curb line; that the defendant negligently permitted the covering of this drain or trench to become so dilapidated, broken- and out of repair that the plaintiff, while passing along the street, without any negligence on her part; stumbled over the broken covering and fell into the drain, thereby receiving serious injury. The rule is settled that when an abutting owner, for his private ends, places or maintains in- a public highway anything which, if neglected, will render the way unsaf e for travel, he is bound to exercise'due care to'prevent its becoming dangerous, and that his failure to do so will render him liable for injuries received by a person passing along the highway, resulting from that negléct. The cases upon this subject will be found collated in 15 Am. & Eng. Encycl. L. (2d ed.) 419, notes 2 and 3.

The demurrer to the first count is sustained and to the second count is overruled.