Alcott v. Pub. Serv. Corp. of N.J.

• Decision Date: 15 November 1909
• Citation: 74 A. 499,78 N.J.L. 482
• Parties: ALCOTT v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.
• Court: New Jersey Supreme Court

74 A. 499

78 N.J.L. 482

ALCOTT

v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1909.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Charles M. Alcott against the Public Service Corporation of New Jersey. From the judgment of the Supreme Court (71 Atl. 45) reversing a judgment of the Circuit Court for plaintiff, plaintiff brings error. Judgment of the Supreme Court reversed and of the Circuit Court affirmed.

John W. Westcott, for plaintiff in error.

E. A. Armstrong, for defendant in error.

PARKER, J. Judgment in favor of the plaintiff in error was reversed in the Supreme Court on the ground that the proof showed without contradiction that the switching device in which plaintiff's wagon wheel seems to have caught was of standard pattern, in common use, and had been properly laid and inspected. The propriety of that determination is now before us for review. The circumstances of the accident are set forth in the opinion of the Supreme Court and need not be here repeated in detail.

We think that court erred in holding that the evidence showed proper inspection of the switch so conclusively as to remove that element of the case from the consideration of the jury. A legitimate theory of the causation of the accident is that when the plaintiff turned his horses off the street car track, and the front wheels of the heavy omnibus skidded along the track without leaving it, the tire of the right wheel, which was 11/16 of an inch thick and projected outward from the felloe 1/8 of an inch, caught under the "butt" or end of the piece known as the "mate." Manifestly this could not have happened unless the mate either was or was capable of being raised above the main rail at least the thickness of the tire. That this fact would indicate that the appliance was in bad order is inferable from the evidence of one of the witnesses for the defendant company, who testified that the mate was constructed to fit closely into the side of the rail lapping both above and below the tram or horizontal tread, with a play of one-eighth of an inch both above and below, so that if pressed up closely against the under side of the rail the tongue would be a quarter of an inch above the rail, but no more. If, then, it was raised about three-quarters of an inch, as the jury might have found on the evidence, an inference that it was in bad order was clearly permissible. There was other evidence to the same effect. The plaintiff, for example, testified: That the "iron and all was raised"; that one end had settled, and the other end had raised; that the pavement next to the rail was in bad order. There was also evidence tending to show that the switch was out of order some days prior to the accident in question. This evidence was objected to by defendant, and an exception that was taken to its admission will be dealt with presently. Taken with the other evidence, a jury question was presented whether the switch was out of order and had been allowed to become so by negligence of the defendant, notwithstanding testimony on the part of the defendant that inspections were regularly made and that it was found in good condition.

The judgment of the Supreme Court, reversing the trial court should therefore be reversed unless justified by some error at the trial that would vitiate the judgment in the trial court. Two points are urged by defendant in error: That the trial court admitted testimony of other accidents at this same switch shortly before and shortly after the accident to plaintiff; and that the court charged, in effect, that this testimony might be considered as throwing light on the question whether the switch was out of order at the time of the plaintiff's accident. It is claimed, on the authority of Bobbink v. Erie R. R., 75 N. J. Law, 913, 69 Atl. 204, decided by this court, that the testimony was improper, and that the court should not have alluded to it in the charge. We think that the weight of later authority and the better reasoning favor the view that the action of the trial court was proper. One witness testified that his wagon was stopped in a similar manner, by the wheel catching in the switch, some 13 days before plaintiff had that experience. Another witness testified that 3 days after the accident, as a result of his own wagon catching in the switch, he examined it, and his description of it at that time corresponded closely with plaintiff's description of it at the time of the accident in question.

Prof. Wigmore, in the sixteenth edition of Greenleaf on Evidence (volume 1, p. 81), lays down the doctrine that: "Where the matter in issue is the existence of a condition, quality, capacity, tendency, or the like, of an inanimate object—dangerousness, * * * etc. —there are three chief modes of evidencing this circumstantially. One consists in showing the prior or subsequent existence of the condition, and thence inferring its existence at the time in question. * * * Still another consists in showing particular instances on other occasions in which the quality, tendency, etc., of the thing in question has been exhibited, and thence inferring the general existence of that quality, etc. * * * The natural limitation of this sort of evidence is that the prior or subsequent time must be so near that nothing may be supposed to have occurred to cause a change, and the distance of time will depend entirely on the thing whose existence is in question." He adds that: "In evidencing a quality, tendency, capacity, etc., by instances of its effects or exhibitions or operations on other occasions, the natural and logical limitation is that the evidential instances should have occurred under substantially the same circumstances or conditions as at the time in question, because otherwise they might well be attributed to the influence of some other element introduced by the differing circumstances." He concedes that the logical objection to this sort of evidence is the tendency to unfair surprise and confusion of issues; that, in addition, the tendency of the courts has been to exclude this class of evidence in cases of deliberate experiment to test the particular quality, and in cases where it has been sought to show, in defense, that the place, or appliance, or what not, had long been in use without accident, and ergo must be safe. Experimental evidence was excluded in Libby, McNeill & Libby v. Scherman, 146 Ill. 540, 34 N. E. 801, 37 Am. St. Rep. 191; and the plan of showing safety by previous absence of accident was condemned by our Supreme Court in Temperance Hall Association v. Giles, 33 N. J. Law, 200; and outside of this state, in such cases as Baltimore, etc., Turnpike v. Leonhardt, 66 Md. 70, 5 Atl. 346, Hodges v. Bearse, 129 Ill. 87, 21 N. E. 613, Lewis v. Smith, 107 Mass. 334, and Beverly v. Boston, 136 Mass. 306, 49 Am. Rep. 37, although countenance is given to it in Dougan v. Champlain Transportation Co., 56 N. T. 1.

The learned...