Bageard v. Consol. Traction Co.

• Decision Date: 06 March 1900
• Citation: 64 N.J.L. 316,45 A. 620
• Parties: BAGEARD v. CONSOLIDATED TRACTION CO.
• Court: New Jersey Supreme Court

45 A. 620

64 N.J.L. 316

BAGEARD

v. CONSOLIDATED TRACTION CO.

Court of Errors and Appeals of New Jersey.

March 6, 1900.

(Syllabus by the Court.)

Error to supreme court.

Action by Joseph Bageard against the Consolidated Traction Company. Judgment for plaintiff. Defendant brings error. Reversed.

The plaintiff in the first count of his declaration complained that the defendant, a common carrier of passengers upon an electric street railway, did not use due care to assist him to get safely off a car, on which he was a passenger, at the terminal station at the foot, of Exchange Place, in Jersey City, near the Pennsylvania Railroad ferry to New York, and to pass through such station to the street, and so negligently managed another car as to run him down while he was carefully proceeding through the station in departing from the car on which he had arrived. In the second count he complained that on his journey in defendant's car he became seriously ill and faint, and it thereby became the duty of the defendant to use the highest practicable degree of care for his safety and safe delivery beyond the tracks of the defendant in its said station, and averred, as breach, that the defendant so negligently managed another ear propelled along one of the tracks of the station, and so negligently placed and left the plaintiff in his condition of illness and faintness in the station, and among the tracks of the defendant, that while he was endeavoring to proceed from the station he was run down by such other car. Under plea of the general issue, the cause came on for trial at the Union circuit, and resulted in a verdict for the plaintiff. This writ of error removes the consequent judgment, and reversal is sought upon exceptions sealed at the trial.

James B. Vredenburgh, for plaintiff in error.

George H. Bruce, for defendant in error.

COLLINS, J. (after stating the facts). Exceptions to the refusal of the trial judge to nonsuit the plaintiff or direct a verdict for the defendant involve an examination of the evidence in the cause. The plaintiff was injured on June 12, 1897, in the terminal station of the defendant's electric street railway at the foot of Exchange Place, in Jersey City, near the ferry to New York. This terminal station was thus arranged and used: Inbound cars ran east down York street on a single track, and then into the station on four tracks, diverging therefrom and curving to the north. In the station the four tracks were parallel with each other, and ran northward to the south line of Exchange Place. Thence they converged, crossing the sidewalk and curving to the west until they merged in a single outward-bound track in that street. The cars came to a stop a little south of the line of Exchange Place, and thence started forward on their outward trips. These terminal tracks were covered by a shed, open front and rear, and supported at the sides by posts 10 inches square. The company's office adjoined this shed on the east, and Taylor's Hotel adjoined it on the west. The space between Taylor's Hotel and the westernmost track in the station was 4 feet and 8 inches wide. Between the line of the posts and the line of a car on the track the distance was not more than 2 1/2 feet. Passengers had no proper occasion to go within this space, the car exit and entrance being on the other side, but men sometimes did so for a purpose which there would be a nuisance. Further down the station there was an offset in the wall, and a door of entrance to the hotel. The plaintiff was a passenger on a car that ran into the station on the westernmost track at 11:25 p. m. His destination was the ferry to New York. He was asleep in the car, and after the other passengers had gone he was awakened by the conductor and motorman. He testified that he was sick. They testified that they supposed that he was under the influence of liquor. There was no proof that anything was said by or to him. He was helped to the ground on the east side of the car, and led out to the front of the station. He called as witnesses the conductor and motorman, who at the time of the trial were not in defendant's employ. The conductor testified that he led the plaintiff to the edge of the sidewalk, beyond the company's premises. The motorman testified that he saw the conductor leading the plaintiff along by the side of the car towards the street, but did not see how far he went The plaintiff testified that he was taken beyond the car, but not to the street. How near to the sidewalk he was brought, he could not say. He further testified that he knew nothing of what happened from the time he was left until he was injured, except that he was trying to get out of the station. The conductor admitted that on the trial of a suit brought for the same injury, in which there was a nonsuit, he had testified that he left the plaintiff 5 or 6 feet short of the sidewalk, but he said that his memory had been refreshed, and his present statement was correct. The plaintiff did not repudiate the conductor as a witness, as he possibly might have done, on the ground of surprise; and, in view of his own uncertainty, it must be considered as proved that he was taken beyond the defendant's premises. It makes little difference, however, whether he was taken to the street, or to within a few feet of it. At either point he was perfectly safe, and his course to the ferry was open. He was able to walk, and there was no proof that anything in his condition indicated that it was improper or unsafe to leave him at the front of the station, whatever may have been the exact spot where he was left. The conductor testified that as his car left the station on its outward trip the plaintiff turned and went towards the back of the station. He was next seen, as far as the testimony shows, by a witness called in his behalf, and by two called for the defendant, and was then standing between the hotel and a car on the westernmost track, that was awaiting the starter's signal. Its schedule time to arrive was 11:40 p. m., and to leave was 11:45 p. m. He was leaning against the hotel, or one of the posts of the shed, and had been vomiting. His witness was the motorman of a car that had just come in behind the other, and upon the same track. The car ahead started, and as it did so the plaintiff slid down to the ground, and his feet went under the rear wheels and were crushed....