(dissenting). The corporate defendant’s building at 483 Springfield Avenue, Newark, is located in a highly commercialized area and its ground floor is operated by its principal stockholder, the individual defendant, as a radio and appliance store. The sidewalk in front of the building is paved from curb to building line and is used by business patrons as well as the public generally. The plaintiff, while walking in front of the store, caught her foot in a hole in the sidewalk and her resulting fall caused serious injury. She fell near the curb on a portion of the sidewalk which *227had been badly broken and contained some dirt fill. There were snapshots introduced in evidence which indicated not only that the sidewalk breakage at the point of the fall was extensive, but also that the surrounding portions of the sidewalk were in somewhat better condition.
The corporate defendant acquired title to the building in 1944 and during the same year the individual defendant’s tenancy began. Although at that time the sidewalk was not in good condition, the defendants never made any repairs except to sections of the sidewalk located about ten or twelve feet from the point of the plaintiff’s fall. Miss Eerfecki, who had lived in the neighborhood for over four years, testified that on many occasions she had seen deliveries of washing machines and refrigerators being made on the sidewalk near the curb in front of the individual defendant’s store. The washing machines and refrigerators were wheeled into the store on hand trucks. Miss Eerfecki testified further that although the broken condition of the sidewalk had existed since she first moved into the neighborhood, it had “become worse.” Mr. Connolly, a construction expert and consultant engineer, testified that he had examined the sidewalk and had found that it was “very poofly constructed as to material and workmanship.” He pointed out that it was only one inch thick, had no cinder fill and “no reinforcing whatever,” and was not suitable for any commercial purposes “such as rolling trucks, backing up trucks on it, and dropping heavy packages or bundles on it.” He expressed the opinion that the sidewalk had been laid not more than 20 years earlier, that “wear and tear from pedestrians’ walking” would not have brought about its condition, and that “a few slabs in particular, near the curb are very badly broken up as though something had been dropped upon them.” Notwithstanding the weight of all of the foregoing and the well-established rule that the plaintiff is entitled to the benefit of the most favorable testimony, together with the reasonable inferences therefrom, the trial court dismissed the action at the close of the plaintiff’s case. See Dobrow v. Hertz, 125 N. J. L. 347, 348 (E. & A. 1940).
*228At common law the responsibility of constructing and maintaining sidewalks was placed on the municipalities rather than upon the abutting landowners. See Stevenson, Law of Streets and Sidewalks in New Jersey, 3 Rutgers L. Rev. 19 (1949); Restatement, Torts, § 349 (1934) and N. J. Annotations (1940); 19 McQuillin, Municipal Corporations (3d ed. 1950), § 54.01 et seq. However, our statutes have expressly authorized municipalities to impose the obligation of constructing and maintaining sidewalks upon the abutting landowners (R. S. 40:180-2) and ordinances doing so were adopted in Newark many decades ago. In Pirozzi v. Acme Holding Co. of Paterson, 5 N. J. 178, 186 (1950), this court recently reaffirmed the sound principle that where a common law or statutory obligation “is due to the public, considered as composed of individuals, and for their protection, each person specially injured by a breach of the obligation, is entitled to a private action to recover compensation for his damage.” Much may be said for the position that, in the light of current urban conditions, landowners (at least those engaged in commercial activity) should now be held accountable, under this principle, for damages resulting from their failure to discharge their statutory duty of maintaining the sidewalks in front of their premises. Cf. Prosser, Torts, 607 (1941). However, our courts have persisted in their view to the contrary, asserting flatly that “where a duty simply to maintain the sidewalk in a state of repair is laid by statute or local ordinance upon the owner or occupant of premises abutting upon a public street, its non-performance does not give rise to a cause of action in favor of one injured by a defect due to wear and tear.” Fischer v. Salomone, 136 N. J. L. 431, 432 (Sup. Ct. 1948); Rupp v. Burgess, 70 N. J. L. 7, 9 (Sup. Ct. 1903).
The foregoing doctrine is pregnant with seeds of gross injustice for it tends to immunize the wrongdoer whose flagrant neglect of duty has caused injury to an innocent party who is left with recourse against no one. See Buckalew v. Board of Chosen Freeholders of Middlesex, 91 N. J. L. 517 (E. & A. 1918); McQuillin, supra, at 33. Perhaps because *229of the harshness of the general rule of non-responsibility our courts have displayed a readiness to impose liability upon defaulting landowners upon showings of slightly variant circumstances. In Braelow v. Klein, 100 N. J. L. 156 (E. & A. 1934), the plaintiff fell on the sidewalk in front of the defendant’s premises and suffered injury. The evidence indicated that when the defendant purchased his property the sidewalk was three inches higher than that on the adjoining property and he did nothing to alter this condition. The Court of Errors and Appeals sustained a judgment for the plaintiff on the ground that the defective construction of the sidewalk had created a public nuisance which the defendant was responsible for continuing. See also Fasano v. Prudential Insurance Co., 117 N. J. L. 539, 540 (Sup. Ct. 1937). In Prange v. McLaughlin, 115 N. J. L. 116 (E. & A. 1935), the plaintiff fell when she “stepped into a hole caused by a break in the cement sidewalk” in front of the defendant’s apartment building. There was evidence indicating that the break had been caused by coal trucks and moving vans “backing up on the sidewalk” and that the defendant was aware of the condition and its cause. The Court of Errors and Appeals sustained a judgment for the plaintiff on the ground that the improper use of the sidewalk had created a nuisance in which the defendant may be said to have participated and which he was under a duty to terminate. See also Davis v. Tallon, 91 N. J. L. 618 (E. & A. 1918); Zak v. Craig, 5 N. J. Misc. 275 (Sup. Ct. 1937). In McHugh v. Hawthorne Building & Loan Ass’n., 118 N. J. L. 78 (Sup. Ct. 1937), the plaintiff was injured when she caught her foot in a crack in the sidewalk fronting on the defendant’s property. The evidence indicated that the defendant’s predecessor in title had negligently made repairs to the sidewalk. The court affirmed a judgment for the plaintiff on the ground that the predecessor’s conduct had created a nuisance which the defendant was under a duty to eliminate. And in the recent case of Saco v. Hall, 1 N. J. 377, 383 (1949), this court, in a unanimous opinion delivered by Justice Oliphant, significantly broadened the responsi*230bility of an abutting landowner for injury suffered by a plaintiff who fell on the sidewalk which had become icy from a faulty drain attached to the defendant’s building; earlier narrower holdings were expressly overruled and the opinion repeatedly stressed the public’s easement to use the sidewalk for safe travel and its “right to assume that there is no dangerous impediment or pitfall in any part of it.”
In recent days this court has displayed increased awareness that the vital purpose of our legal system is to serve justly the needs of present day society. See Arrow Builders Supply Corp. v. Hudson Terrace Apartments, Inc., 15 N. J. 418, 426 (1954), rehearing denied 16 N. J. 47 (1954); Murphy v. Kelly, 15 N. J. 608, 612 (1954). Ancient common law doctrines in various fields have been carefully re-examined and restated to meet modern social and moral concepts (see Stoffer, The Supreme Court and Stare Decisis, 9 Rutgers L. Rev. 1 (1954)), and it may well be that the time has come to re-evaluate generally the tort responsibility of abutting landowners. See McNiece & Thornton, Affirmative Duties in Tort, 58 Yale L. J. 1272 (1949); Friedmann, Social Insurance and the Principles of Tort Liability, 63 Harv. L. Rev. 241 (1949). Cf. Greenspan v. State, 12 N. J. 426 (1953); Harris v. Mentes-Williams Co., Inc., 11 N. J. 559 (1953). Although a majority of the court is presently not prepared to take such action, it would seem that in the particular case at hand, the fair and just result may be reached without going beyond the orbit of the New Jersey precedents; indeed, the circumstances presented seem much more compelling than those presented in Braelow v. Klein, supra; Prange v. McLaughlin, supra; McHugh v. Hawthorne Building & Loan Ass’n, supra, and Saco v. Hall, supra. The defendants’ building was used for commercial purposes, the adjacent sidewalk was used by business patrons as well as the public generally, and the proper maintenance of the sidewalk was directly beneficial to the operation of the business. Although the defendants had owned and occupied the premises for many years, they deliberately permitted the deterioration of the sidewalk far in excess of that resulting from *231ordinary pedestrian wear and tear. Originally, the sidewalk had been “very poorly constructed” and was, at best, suitable for pedestrian use alone; nevertheless, they used it for commercial deliveries along the curb with resulting breakage and worsening of its pre-existing poor condition. The plaintiff’s fall took place near the curb where the breakage had been particularly severe and where no repairs had ever been made. While it is true that there was no direct eye witness assertion that the plaintiff fell where the deliveries of the washing machines and refrigerators had taken place and that the “deliveries, caused the walk to break,” the realistic inferences to be drawn from the testimony were pointedly to that effect. Strictly within the language of the New Jersey decisions, a jury could reasonably have found from the evidence that the defendants had participated in the creation or continuance of the nuisance which proximately caused the plaintiff’s fall and injury. That being so, the trial court should not have dismissed the proceeding at the close of the plaintiff’s case but should have called upon the defendants for their affirmative testimony in support of the defenses.
Chief Justice Vanderbilt joins this dissent. For affirmance — Justices Heher, Oliphant, Wacheneeld and Burling — 4. For reversal — Chief Justice Vanderbilt, and Justice Jacobs — 2.