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49 Vroom.

Chester v. Cape May Real Estate Co.

It must be conceded that the plaintiff was bound to show something more than that the defendant was possibly responsible for the decedent's death in order to entitle him to a verdict. It was incumbent upon the plaintiff, in the absence of direct evidence of the fact, to show not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference that the death was caused by the wrongful act of the defendant, and would exclude the idea that it was due to a cause with which the defendant was unconnected. Suburban Electric Co. v. Nugent, 29 Vroom 658; Stumpf v. Delaware, Lackawanna and Western Railroad Co., 47 Id. 153; Houston v. Traphagen, 18 Id. 23. And this, it seems to us, the plaintiff has not done.

The verdict for the plaintiff necessarily rests upon the theory that the gas found its way into the sewer through the lateral pipe introduced into the manhole by the defendant, through which some muddy water was flowing at the time of the accident. But we think, as the defendant contended, that the evidence demonstrated that it was at least equally probable that the gas came from the open "working end" of the main trunk sewer, which rested in a ditch sixteen feet deep. which ditch was at the time or shortly before the accident filled with water by reason of rainfall and temporary stoppage of pumping. It was made to appear at the trial that an effort was made to keep what is known as the "working end" or both sewers closed when not laying pipe, but the evidence indicates that the closing was so imperfect in both cases that both gas and water, if present, would not be prevented from entering the sewers. The evidence also shows that the gas in question is heavier than air and was always present in the ditch at the "working end" of the main sewer, and sometimes in the sewer itself; that the gas does not rise, but moves along the level under pressure from wind, water or the like. As we have pointed out, the main sewer was from twenty-four to thirty inches in diameter and its "working end" was at the bottom of a long ditch sixteen feet deep, and by reason of the water the gas there is certainly shown to have been under heavy pressure, while, on the other hand,

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Fishblatt v. Atlantic City.

the lateral sewer was but eight inches in diameter and its "working end" was at the bottom of a ditch only from three to five feet deep. When it is remembered that the meadow proper, which is said to have generated the gas, was four feet beneath the surface of the ground, it will be seen that it is at least equally probable that the gas in question came from the ditch at the "working end" of the main sewer as that it came from the "working end" of the lateral sewer.

We think, therefore, that the jury could have attributed the presence of the gas which killed the plaintiff's intestate to other causes with quite as much reason as they have attributed it to the act of the defendant. The circumstances would warrant the former inference quite as clearly as the latter. The case is one, we think, where it appears that the primary cause of the injury proceeded from one of two sources, or was produced by one of two agencies, for one of which the defendant might be responsible, but not for the latter. The plaintiff must fail because the evidence does not show that the injury was the result of some cause for which the defendant was responsible. Stumpf v. Delaware, Lackawanna and Western Railroad Co., supra; Searles v. Manhattan Railway Co., 101 N. Y. 661; Ruppert v. Brooklyn Heights Railroad Co., 154 Id. 90.

The rule to show cause will be made absolute.

78 N. J. L.


Argued May 17, 1909-Decided June 7, 1909.

1. Under section 5 of the Certiorari act (Pamph. L. 1903, p. 344), after the plaintiff's reasons for reversal are filed, either party may bring the action on for argument before any justice of the Supreme Court at chambers, by giving five days' notice within fifteen days after the reasons are filed.

49 Vroom.

Fishblatt v. Atlantic City.

2. The act approved April 26th, 1894 (Pamph. L., p. 146), conferring powers upon cities located on or near the ocean to lay out public parks is constitutional.

3. Under the act approved April 3d, 1902 (Pamph. L., p. 284), which was adopted by Atlantic City as its charter, that city has power by ordinance to issue its corporate bonds in amounts not exceeding the limit prescribed in the act, for the purpose of providing moneys with which to lay out and open, and to purchase and condemn land for and within the limits of, a public park along the ocean front, established by ordinance pursuant to the authority conferred by the act approved April 26th, 1894. Pamph. L., p. 146.

4. In

an ordinance the authorization of bonds not to exceed a certain amount is equivalent, in legal effect, to fixing the amount of such bonds at such sum.

On certiorari.

Before Justice TRENCHARD.

For the prosecutrix, Thompson & Cole.

For the respondent, Harry Wootton, Godfrey & Godfrey and Gilbert Collins.

The opinion of the court was delivered by

TRENCHARD, J. This writ of certiorari brings up for review an ordinance of Atlantic City.


The argument thereof is brought on by the respondent before me at chambers. The prosecutrix objects that the statutory conditions to an argument at chambers before a single justice of the Supreme Court have not been complied I think they have. Five days' notice was given within fifteen days after reasons were filed. By section 5 of the C'ertiorari act (Pamph. L. 1903, p. 344) such notice is sufficient. It is not necessary, as contended by the prosecutrix, that it be noticed for a day not later than fifteen days from the day rea

sons were filed.

The ordinance under review is for a bond issue of $500,000 for public park purposes.

Atlantic City was originally incorporated in 1854. Pamph. L., p. 278. Inspection of its charter shows that the city

Fishblatt v. Atlantic City.

78 N. J. L.

fronts upon the Atlantic ocean, and indeed the court will take judicial notice of that fact. Nothing in that charter or any supplement thereto authorizes public parks. By an act approved April 26th, 1894 (Pamph L., p. 146), any city in this state, located on or near the ocean, and embracing within its limits or jurisdiction any beach or ocean front, may open and lay out on and along such beach or ocean front a public park or place for public resort and recreation, and may acquire lands for such purpose by purchase and condemnation. No provision for payment for the lands was made, and therefore each city would have to resort to its charter powers.

First. It is contended by the prosecutrix that the act of 1894 is unconstitutional. The grounds given for its invalidity are that it is a special law regulating the internal affairs of cities, contains more than one object, does not display its object in its title, deprives landowners of their property without due process of law, and denies them the equal protection of the laws. The act has been held constitutional by the Court of Errors and Appeals. Seaside Realty Co. v. Atlantic City, 45 Vroom 178; affirmed on the opinion below, 47 Id. 819. True, the only point urged against the act in that case was its alleged obnoxiousness to the constitutional prohibition against special legislation. There is nothing, however, in the other points now made against the act. Its title clearly expresses its object, and that object is single. In giving effect to section 7, article 4 of the constitution, the courts give paramount consideration to the general object of the act -the general purpose of the legislative scheme. The general object of the act being ascertained, the legislature may include in it provisions of a multiform character, designed to carry into execution the legislative purpose, which are not inconsistent with or foreign to the general object of the act. Easton and Amboy Railroad Co. v. Central Railroad Co., 23 Id. 267.

What counsel means by the suggestion that the act deprives landowners of their property without due process of law, or denies them equal protection of the laws, is difficult to surmise. Their property cannot be taken without compensation,

49 Vroom.

Fishblatt v. Atlantic City.

and all property within the limits of the authorized park is put on an equal footing. Similar objections to the act of 1903 (Pamph. L., p. 387), which affected the act of 1894 by permitting the city to acquire the state's land under water, against any pre-emption of a riparian owner, were held untenable in Seaside Realty Co. v. Atlantic City, 45 Vroom 178, 181.

Secondly. It is urged that there is no power in the city council of Atlantic City to enact the ordinance in question.

If the original charter of Atlantic City were the only legislation to which resort could be had, this point would be well taken, and the general act of 1895, hereinafter mentioned, would be unavailable because of its limitation as to the amount of bonds authorized. The authority for the ordinance in question will be found in "An act relating to, regulating and providing for the government of cities," approved April 3d, 1902 (Pamph. L., p. 284), which has been adopted. by Atlantic City as its charter.

Section 66 of that act provides that it shall be lawful for the city council, whenever in their opinion the public good. requires it, by ordinance:

"1. To lay out and open any public park * within such city, * * * and to purchase or condemn for any such purpose, when necessary, any lands and real estate upon making compensation to the owner or owners thereof as is hereinafter mentioned and provided, and such power shall belong exclusively to the city council." * * By section 105 it is provided as follows:

"It shall be lawful for the city council, in the name of the city, under authority of this act, to issue its corporate bonds for any sum not exceeding fifteen per centum of the taxable value of the property rated for assessment, and such obligations shall be issued in the name of the city and under its corporate seal and shall be signed by the mayor and attested by the city clerk and countersigned by the city treasurer; they shall be of such denominations and bear interest at such rate, not exceeding five per centum per annum, and be payable at such times and places not exceeding thirty-five years



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