Kinsey v. Hudson & Manhattan R. Co.

• Decision Date: 17 June 1943
• Docket Number: No. 413.,413.
• Parties: KINSEY v. HUDSON & MANHATTAN R. CO.
• Court: New Jersey Supreme Court

130 N.J.L. 285

32 A.2d 497

KINSEY

v.HUDSON & MANHATTAN R. CO.

No. 413.

Supreme Court of New Jersey.

June 17, 1943.

Action by Grace J. Kinsey against the Hudson & Manhattan Railroad Company for injuries resulting from assault by intoxicated passenger on defendant's train. From a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Second District Court of Jersey City.

January term, 1943, before BODINE, HEHER, and PERSKIE, JJ.

Collins & Corbin, of Jersey City (Edward A. Markley and James B. Emory, both of Jersey City, of counsel), for appellant.

Max A. Sturm, of Teaneck, for respondent.

HEHER, Justice.

Plaintiff sued to recover damages for personal injuries sustained at the hands of an intoxicated passenger on a train of the defendant corporation, while she was being transported from the City of New York to defendant's Journal Square Station in the City of Jersey City. The District Court Judge, sitting without a jury, resolved the issues in her favor; and defendant appeals from the consequent judgment and assigns error upon the denial of its motions for a nonsuit and a ‘directed verdict’ for an alleged failure of proof of negligence.

There was evidence tending to establish the following matters of fact: On October 1, 1939, at 9:30 a. m., plaintiff boarded the train, composed of two cars, at the 33d Street terminal in the City of New York. At 14th Street, an intoxicated man entered the second car, ‘roaring like a wild animal.’ He ‘made a lot of annoying remarks to’ passengers, and ‘yelled and shouted.’ This course of conduct continued until the train reached the Erie Station in Jersey City, when he took a seat opposite the plaintiff, who was in the forward part of the car. Almost immediately, he arose and ‘grabbed’ plaintiff, ‘mauled’ her and ‘pulled’ her ‘over the seat’, the while making ‘insulting remarks.’ She endeavored to escape, but he followed and struck her behind the left ear, causing ‘a fishhook incised wound’ with profuse bleeding. The fracas was unknown to the conductor, the sole trainman, who all the while remained in the first car. It occurred as the train was proceeding from the Erie Station to the Grove Street Station in Jersey City. The intervention of a passenger prevented a renewal of the assault as the train came to a stop at this station. The conductor was then apprised of what had occurred, but meanwhile the assailant disappeared and was not apprehended. Between the time of the departure of the train from the New York Terminal and its arrival at the Grove Street Station, the conductor did not enter the second car. The side doors were controlled by apparatus located between the end doors of the two cars; and at all other times the conductor stood in the rear of the first car. It was a rule of the defendant company that he stand in the vestibule of the forward car, ‘to be able to see both cars'; but he admitted that from the time the train left the Erie Station until it reached the Grove Street Station he did not look into the rear car.

Conceding that it is the common carrier's duty to safeguard passengers from the molestation of disorderly or unruly fellow-passengers, defendant insists that the particular occurrence could not have been reasonably anticipated, and therefore it is not chargeable with the nonperformance of its duty to exercise a high degree of care for the safety of its passengers-citing Miller v. West Jersey, etc., R. Co., 71 N.J.L. 363, 59 A. 13; Id., 79 N.J.L. 499, 76 A. 973; Kalleberg v. Raritan River R. Co., 91 N.J.L. 222, 102 A. 350; Seckler v. Pennsylvania...