# Board of Chosen Freeholders v. Hough

> Supreme Court of New Jersey · June 15, 1893 · 55 N.J.L. 628

URL: https://www.frixlaw.com/law-library/cases/8270831

## Case

- **Full name:** THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MORRIS, IN ERROR v. EDWIN HOUGH AND MARTHA HOUGH, IN ERROR
- **Court:** Supreme Court of New Jersey
- **Decided:** June 15, 1893
- **Citations:** 55 N.J.L. 628; 26 Vroom 628; 28 A. 86; 1893 N.J. LEXIS 13
- **Precedential status:** Published
- **Opinion:** Dissent by Beasley
- **Judges:** Abbett, Beasley
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8270831

## Opinion text

Beasley, Chief Justice
(dissenting). The facts in this case, to which the law is to be applied, are few and undisputed. They are these : The board of freeholders, the plaintiff in error, erected a county bridge over the Rockaway river, *645 in the town of Dover, and as the sidewalk of the street connecting with it extended beyond the width of the bridge, it became necessary to construct a wing wall at that point. Without such a protective contrivance the sidewalk would have been left in a highly dangerous condition, as the ground at the place to which it led along the side of the bridge fell away somewhat precipitously. Accordingly, the freeholders,
' at the time of constructing their bridge, put up a wing wall across the dangerous part of the sidewalk in question, which was confessedly an adequate safeguard as things then were. The bridge, including the sidewalk, had been built by contract, and having been examined by the building committee, and being deemed satisfactory, was approved and paid for. In a few days after this a pi'oposition was brought before the building committee to put an iron railing on the top of the wing wall above mentioned, and the witness who testified upon this subject, and who was one of the committee and the only witness in this respect, thus narrated the transaction, viz.: “ Our committee, some of them, thought that we did not need any railing on it; I told them I thought we had better have one, because at some future time it might be graded and it would be necessary; at that time it was not necessary.” Under these circumstances a railing was ordered. The mechanic thus employed neglected to put it up for a few weeks, and in the interim the town of Dover, or a landowner, filled in the sidewalk in question to a level with the top of the wing wall. By this means, of course, the sidewalk was left without any safeguard at its terminus by the bridge, and the plaintiff, crossing the bridge by night, fell from the sidewalk down the steep already mentioned, and, being injured, brought the present action.
That the plaintiff is entitled to be indemnified for her damages by some one is certain, but the question is whether the plaintiff in error is that responsible person.
My examination has led me to the conclusion that it is plain that this suit, as -it is now laid, will not lie. Every ground upon which it is claimed it can be placed- seems to me *646 to be inconsistent with established legal principles. These freeholders are sued for their negligence, and the only remissness charged is that they neglected to see that the iron railing which they had ordered was immediately placed in position. But the fallacy of this proposition appears to me to be conspicuous, for it cannot be denied that, as the case was then conditioned, these freeholders were not bound in law to put up any railing whatever. The freeholders had made the bridge and sidewalks perfectly safe, and as long as that state of things continued they could not be called upon to do anything further. To anticipate a change of the situation from the possible or probable action of the authorities of the town in the future, near or distant, and to provide for such change, was an undertaking entirely gratuitous, on their part. Being a mere voluntary purpose, uncommunicated to and wholly unacted upon by any one else, it is incontestably plain that they imposed upon themselves nothing that had even a semblance of a legal liability. It was a purpose that they could abandon at will, and, consequently, they could incur no legal liability by neglecting to perform it.
In my opinion this consideration alone negatives the responsibility of the plaintiff in error for the damages sustained by the defendants in error. I cannot think that it has even been held in any decision that a person is responsible because he has merely refused or neglected to perform an act which he was under no legal obligation to perform.
At the trial the justice who presided instructed the jury .that a verdict against the county could rest but on a single ground. The charge left no doubt upon that subject. It will be remembered that the bridge and sidewalk were left by the plaintiff in error in a perfectly safe condition, and that the town raised the sidewalk so as to occasion the change that proved so disastrous to the plaintiff. The trial justice informed the jury that the officers of the county, as appeared from the evidence, had no information or knowledge of the action of the municipality in this respect. After adverting to the testimony that the freeholders, in view of a probable *647 change of the grade of the sidewalk by the action of the town in the future, he said: “ Now, gentlemen, was the plan designed for access to the footways of the bridge such as, either originally or as modified on that day, contemplated the filling up of the sidewalk and the construction of the footway thereon, to and along the wall, so as to reach and give convenient access to the footway of the bridge? "Was that plan in the contemplation of the committee who represented the defendants, and did they contemplate, not the filling up, themselves, but to adopt the filling up of others ? If not, gentlemen, then I am obliged to charge you that defendants were not responsible for the construction of what was not within their plan, provided the plan they did adopt furnished a safe and convenient access to the bridge, and it would be immaterial in this case whether it did or not, because it is not at all in question that the injury here happened, not because of the original access to the bridge, provided by the freeholders, but because of the filling up of the sidewalk by others.”
It will be observed that the theory at the trial was that if the jury believed that it was within the contemplation of the freeholders that the sidewalks would eventually be filled up by the town authorities, and if, to provide for that eventuality, they ordered the railing in question to be put up, and if they were negligent in effecting such erection, then they would be liable for the injuries sustained by the defendants in error.
I have-altogether failed to see how the foregoing proposition can he brought to harmonize with legal principles that have always been regarded as indubitable.
We have already seen that after the freeholders had properly built their bridge and had properly connected it with the roadbed and sidewalks, and had left these works in a safe condition, they had fully discharged their legal duty. They were under no obligation to provide at that time for any change of condition that might arise in the future from the action of other persons. It follows, of necessity, that the project of putting up a railing was an undertaking absolutely *648 voluntary. These propositions are most assuredly not to be denied, and the inquiry, therefore, presses when and how was this gratuitous purpose changed into a legal obligation. At the trial it was deemed that this metamorphosis took place in case this gratuitous project was part of the scheme adopted in building the bridge, but there seems to be no ground whatever for such an assumption. When these freeholders undertook to build this bridge they assumed a legal obligation; when they resolved to construct this railing they did not assume a legal obligation ;■ how could the fact, therefore, that they contemplated doing both these things transform the latter from a mere spontaneous intention into a compulsory duty? And yet the verdict in this case has no other foundation than the theory that such translation was effected, that because these freeholders contemplated doing that which they were not bound in law to do, that by the very fact of such contemplation they imposed upon themselves a legal duty to perform their gratuitous intention. It is to be observed in this connection that there is no pretence in the case that the municipal authorities had any knowledge that the freeholders contemplated building the railing in question, and, in raising the sidewalk, had acted on that supposition. There was nothing in the evidence to warrant such an inference, and the case was not submitted to the jury in that aspect.
In fine, on this head, my conclusion is, that when those agents of the county, in view of the probable filling up of the sidewalk in question in the future by this municipality, resolved to put up a railing on the wing wall referred to, they merely assumed to do that which at the time they were not bound to do, and that, consequently, such voluntary assumption could be either abandoned or neglected with entire impunity.
Nor does it seem that the result would be changed if we were to assume that the project of the construction of the railing in question became a legal duty on the part of the plaintiff in error.
*649 Granting the existence of such duty and that it was negligently performed, it does not follow that the county is responsible for this damage sustained by the defendant in error. Negligence, in legal contemplation,, does not entail a liability for every possible consequence that may ensue from the fact of its existence, but only for its natural and probable consequences. On this subject, Mr. Addison, in his work on Torts, ml. 1, p. 40, thus formulates the rule, viz.: “ If the wrong and the legal damage are not known by common experience to be usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, and the wrong and the damage are not sufficiently conjoined or concatenated, as cause and effect, to sustain the action.” Similarly, Baron Pollock, in one of his opinions, states the rule in these words, viz.: “ I am inclined to consider the rule of law to be this, that a person is expected to anticipate and guard against all reasonable consequences, but he is not, by the law of England, expected to anticipate against that which no reasonable man would expect to occur.”
In view of this rule, and it is incontestable, it appears to be plain that the present action is not maintainable. Assuming that the duty in question was neglected by these freeholders, still it is a non sequitur that the county is responsible for the hurt sustained by the defendant in error. The freeholders had left their work in a safe condition, and they, therefore, plainly were not the proximate cause of the accident that occurred. The municipality stood in that attitude, for it raised the sidewalk, and thereby made the place dangerous. But for the intervention of the authorities of the town, the mischief, complained of would not have happened. The town, beyond all question, was the immediate causa causans of the dangerous state of this street. The freeholders had left it in a safe condition and these municipal authorities then put it into an unsafe condition, and the freeholders did nothing to lead to such conduct.
The inquiry, therefore, supervenes, how are the freeholders to be connected with this wrongdoing ? Most assuredly only *650 on the ground that they were bound to infer that this street would be raised and left in a dangerous condition by the municipal agents, and consequently should have provided against such an occurrence.
It will be observed that the question is not whether the elevation of the street should have been anticipated by the freeholders, but whether, as reasonable men, they should have anticipated that it would be done in such a manner as to convert it into a public nuisance, dangerous to every one who, by night, should use it. It is plain that the municipal authorities, in leaving one of the public thoroughfares in this grossly perilous state, committed an indictable offence, and, consequently, how can it be contended that the freeholders, as reasonable men, were bound to infer that such a crime would be committed ? It would seem to be undeniable that it was the duty of the municipality, if it elevated its street in the manner described, to have given notice of its intention to the officers of the county, or, in the absence of such notification, to have provided a temporary safeguard against the danger itself had created. Was it in the natural, sequence of affairs that it would neglect this duty, and thereby perpetrate a misdemeanor of a grave character ? Such misconduct as this did not “follow in the ordinary course of events” from the neglect of duty on the part of the freeholders (admitting such duty and such neglect existed), nor could the freeholders have anticipated any such occurrence. Consequently, according to the legal rule already stated, no liability on the side of the county can result by reason of the injury to the defendant in error that forms the basis of this suit.
But, again, on the admission that the plaintiff in error was legally bound to put up the railing in question, and that it was negligent in the performance .of that duty, nevertheless this action will not lie, as it was not the proximate cause of the injury. It was not enough to show that this negligence was, in a distant degree, the cause of the damage to the plaintiffs below, for, in order to validate this judgment, it must appear that it was the proximate cause. But this, it *651 seems to me, incontestably was not the case, for no accident was possible but for the wrongful conduct of the municipal officials. The legal principle is thus stated by Mr. Justice Dixon, in the case of Wiley v. West Jersey Railroad Co., 15 Vroom 251 : “ The rule of law,” says the opinion, “ requires that the damages chargeable to the wrongdoer must be shown to be the natural and proximate effects of his delinquency. The term ‘natural’ imports that they are such as might reasonably have been foreseen and as occur in an ordinary state of things. The term ‘proximate’ indicates that there must be no other culpable and efficient agency intervening between the defendant’s dereliction and the loss.” The same principle is enunciated in Cuff v. Newark and New York Railroad Co., 6 Vroom 17 , and in several other of our own decisions, which it is not necessary to notice. In the present instance, it is not observed upon what ground it can be said that the rule thus stated and established is not applicable¿ but for the intervention of the officers of the town in converting the sidewalk in question into a public nuisance, the misfortune of the defendant in error could not have occurred, and consequently, according to the rule just stated, the suppositious neglect of duty of the plaintiff was not, in legal theory, as it was not in fact, the proximate cause of the injury. How this objection to this suit is to be obviated or removed, I confess that I am at a loss to conceive. In my opinion, the town of Dover was the party responsible alone for the harm sustained by the plaintiff in this action.
In my judgment, an affirmance of this judgment must proceed on the adoption of one or more of the three following propositions, viz.: First, that the non-performance of a gratuitous intention may, per se, lay the ground of an action at law; second, that a negligent person may be charged with damages that are not the “natural” effects of-his delinquency; and, third, that such delinquency will, in law, be deemed the proximate cause of the ensuing loss, although such loss was directly caused by the intervention of a culpable and efficient agency.
*652 Entertaining these views, I shall vote to reverse the judgment contained in the record before us.
For affirmance — The Chancellor, Abbett, Dixon, Lippincott, Eeed, Van Syckel, Krueger, Bogert. 8.
For -reversal — The Chief Justice, Depue, Brown, Smith. 4.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8270831. Public record. Not legal advice.