Baldwin v. Atl. City R. Co.

• Decision Date: 05 March 1900
• Citation: 45 A. 810,64 N.J.L. 232
• Parties: BALDWIN v. ATLANTIC CITY R. CO.
• Court: New Jersey Supreme Court

45 A. 810

64 N.J.L. 232

BALDWIN

v. ATLANTIC CITY R. CO.

Court of Errors and Appeals of New Jersey.

March 5, 1900.

(Syllabus by the Court.)

Error to supreme court.

Action by Charles N. Baldwin against the Atlantic City Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

John A. Westcott, for plaintiff in error.

Willard Morgan, for defendant in error.

MAGIE, C. J. The record brought up by this writ discloses an action in tort by plaintiff in error to recover damages for a personal injury. Plaintiff's declaration founded his right to recover upon the following averments, viz.: That he was in the employ of the defendant company as a brakeman; that it was his duty to step upon one of defendant's freight cars by means of a foot-step attached thereto; that the foot-step was broken, out of repair, and unfit for the use which plaintiff was obliged to make of it; that the defendant company knew of such condition of the footstep, but that plaintiff was ignorant thereof; and that, while plaintiff was thus using the foot-step, by reason of its faulty condition he slipped therefrom, and fell on the track in front of the wheel of the moving car, by which one leg was cut off. The defendant pleaded the general issue, and another plea which need not be considered. The issue came on for trial before Mr. Justice Garrison, at the Gloucester circuit. At the close of plaintiff's case, the trial judge, being of opinion that the evidence adduced by plaintiff would not justify a verdict in his favor, upon defendant's motion directed a nonsuit, whereon this judgment was entered.

The single question presented by the bill of exceptions is whether the nonsuit was proper. From the evidence contained in the bill of exceptions, it appears that plaintiff, on December 9, 1893, was in the employ of the defendant company as brakeman. It may be inferred, although the evidence to that effect is very meager, that he was engaged in his employment on that day as a brakeman upon a freight train hauled by the defendant company on its road, and that about 7 o'clock in the evening he received the serious injury of which he complained. The sole evidence tending to charge the defendant company with liability for that Injury is contained in the following sentences of plaintiff's testimony given on his direct examination, viz.: "Well, I went to board the train. I made the cut, and went on towards the train,—towards the switch; and then I went to board the train, and as I got on the train the step gave way with me, —either gave way or turned under. It let me fall back. Just turned right under, and cut my foot off,"—and the answer given by him when asked on cross-examination, "What was the matter with the step of the car?" viz.: "The step was loose, and it gave way when I stepped on it." The contention on the part of plaintiff is thus stated in the brief of counsel, viz.: "The master is bound to furnish his servant reasonably safe tools. * * * Therefore the affirmative on the plaintiff is to establish that he was injured by the use of an instrument not reasonably safe. * * * The master in this case did injure his servant by an unreasonably defective tool; therefore the master is liable." This argument is based on an incorrect premise. It is incorrect to characterize the master's duty to the servant as an absolute duty to furnish his servant with reasonably safe implements and appliances. On the...