Barrie v. Central R. Co. of New Jersey

• Decision Date: 05 January 1962
• Docket Number: No. A--825,A--825
• Citation: 177 A.2d 568,71 N.J.Super. 587
• Parties: E. Stanley BARRIE, Plaintiff-Appellant, v. The CENTRAL RAILROAD COMPANY OF NEW JERSEY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 587

71 N.J.Super. 587

177 A.2d 568

E. Stanley BARRIE, Plaintiff-Appellant, v. The CENTRAL RAILROAD COMPANY OF NEW JERSEY, Defendant-Respondent.

No. A--825.

Superior Court of New Jersey Appellate Division.

Argued Dec. 11, 1961.

Decided Jan. 5, 1962.

Stanley W. Greenfield, Elizabeth, for plaintiff-appellant.

Prospero DeBona, Jersey City, for defendant-respondent (Milton, Augelli & Keane, Jersey City, attorneys).

Before Judges CONFORD, FREUND, and LABRECQUE.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

Plaintiff sued to recover damages for his personal injuries sustained when he fell, as he claims, from an open vestibule of a train car operated by defendant on which he was riding as a passenger June 3, 1958. The injuries wee extremely serious and extensive. The trial court permitted the case to go to the jury after reserving decision on defendant's motions for an involuntary dismissal and for judgment in its favor on the ground no Prima facie case of negligence and proximate cause was established by the proofs. The jury returned a verdict of $50,000 in favor of plaintiff. Thereupon plaintiff applied for a new trial as to damages only, the verdict being contended to be grossly inadequate. Defendant renewed its motion for judgment, and, in the alternative, moved for judgment notwithstanding the verdict or for a new trial on all issues.

The trial court granted defendant's motion for judgment notwithstanding the verdict. The order further provided, pursuant to R.R. 4:51--2(b), that in the event of reversal on appeal, a new trial be awarded defendant on the ground, among others, that the verdict was the result of compromise. There were other provisions in the order not pertinent in view of our conclusions on the appeal.

I.

We first consider the appellate complaint against the grant of judgment in favor of defendant notwithstanding the verdict. In passing upon a motion for such relief the trial court may not weigh the evidence but must accept as true all evidence which supports the position of the adverse party and give him the benefit of all legitimate inferences susceptible therefrom in his favor. Kopec v. Kakowski, 34 N.J. 243, 244, 168 A.2d 23 (1961). We thus assay the proofs in that light.

Plaintiff boarded the 7:46 A.M. train of the Central in Plainfield on June 3, 1958, as was his custom as a daily commuter. The train was an express to Jersey City and made no stops en route. There was nothing unusual about the plaintiff's conduct or demeanor that morning insofar as his wife, who drove him to the station, or two friends and fellow passengers could see. He had dressed with particular care as he was to attend a company dinner that evening. There had been a conductor in the car, but he was not present when plaintiff went into the vestibule or when the fall from the train occurred. After a smoke in the smoking car, plaintiff arose with the intention of going to the next car forward, a nonsmoker; he carried his topcoat and newspaper. He walked to the front of the car, opened the door to the vestibule, swung it back, and, as he testified, 'that's the last thing that I recall until I awakened in the hospital.' In consequence of plaintiff's falling out of the moving car, his head was severely traumatized by contact with the ground. A brain surgeon testified that plaintiff was suffering from amnesia as to the details of the accident--a common sequela of a severe head injury--which could be permanent.

There was evidence that at the time of the fall the train was in course of rounding a 63 curve to the left at a speed of 50--55 miles per hour (plaintiff fell from the right side). The defendant produced one of its employees, a brakeman named Stauffer, who testified he witnessed the fall from his position in its Bayonne Yard. He said plaintiff 'stepped down from the platform, and stepped down the three steps and off into the air' while the train was going at least 50 miles per hour. 'He had a topcoat over his arm and a briefcase.' However, two Bayonne policemen who investigated the accident the same morning testified Stauffer told them at the time he did not know anything about it.

The hospital records of the Bayonne Hospital were introduced in evidence. They contain different and conflicting versions of the accident, both purportedly emanating from the plaintiff shortly after his removal to the hospital on the morning of June 3, 1958, suffering from a 'compound depressed skull fracture,' among other injuries. Page 3 of the exhibit, written by an intern, Dr. Alonso, states: 'Upon interrogation patient says he became suddenly despondent and jumped off a moving train with resultant serious injuries.' Page 14, over the signature of Dr. Boyle, the attending physician, contains the following:

'Upon interrogation patient states that somebody told him he jumped off a moving train. He says he does not remember doing so. He describes memory of sitting, looking out window of smoking car and attempting to change cars while train was in motion. He remembers a vestibule and an open door and then a flash of light. The next thing he recalls is lying on the R.R tracks.'

Dr. Boyle testified he arrived at the hospital soon after plaintiff's admission and that when he arrived there he found present in the plaintiff's room, among others, a man who identified himself as a railroad representative and whom he knew as such. Although in serious condition and in shock, plaintiff was mentally oriented at the time. Dr. Boyle was precluded, upon objection, from testifying to his conversation with plaintiff as to how the accident occurred, on the ground it was self-serving hearsay beyond the purview of permissible history by a patient to a physician. The doctor had said his questioning of the patient was for purposes of treatment.

As to the hospital entry made by Dr. Alonso, that physician testified he did not remember the case or the incident at all, merely that it was written in his handwriting. He is a native of the Dominican Republic, and his testimony revealed considerable difficulty in comprehension of an expression in English. He did not remember whether any railroad man was in the room at the time.

Dr. Boyle called in Dr. Winokur, a neurosurgeon, as a consultant, and that doctor saw the patient the morning of the accident. He recorded in the hospital records a history of a 'fall from a train.' Over the period of his treatment of the patient from June to November 1958 he found no psychiatric illness or disturbance in the patient.

The railroad company did not produce at the trial any member of the June 3, 1958 train crew who might have testified as to the condition of the trap door or outside vestibule door as of the time of the event here involved. A fellow-passenger of plaintiff on the train, a regular commuter on the railroad from Plainfield to New York, was upon objection not allowed to testify as to the 'practice of the railroad, before June 3, 1958 with regard to whether or not the outer doors were open or shut after the train left Plainfield.' This, however, is not urged as a point of appeal.

An engineer testifying as an expert witness for the plaintiff gave it as his opinion that a person walking forward from one car to another through the vestibule while the train was negotiating the Bayonne curve at 50 miles per hour would be thrown to the right against the outer door of the car.

We are constrained to the conclusion that on the law and the most favorable view of the evidence from plaintiff's standpoint, the case for defendant's liability was properly given to the jury in the first instance.

It is the general rule that a common carrier of passengers must use a high degree of care to protect them from danger that foresight can anticipate. Rourke v. Hershock, 3 N.J. 422, 426, 70 A.2d 489 (1950). In Harpell v. Public Service Coordinated Transport, 20 N.J. 309, 316, 317, 120 A.2d 43, 47 (1956), the court approved the expression that: 'Carriers who accept passengers entrusted to their care must use great caution to protect them, which has been described as 'the utmost caution characteristic of very careful prudent men,' or 'the highest possible care consistent with the nature of the undertaking. " In specific application to falls by train passengers from open vestibule doors, the courts have permitted juries to find violation of the requisite standard of care by the carrier in such cases as Rivers v. Penna. R.R. Co., 83 N.J.L. 513, 83 A. 883 (E. & A.1912); Potter v. Pennsylvania Railroad Co., 113 N.J.L. 441, 174 A. 734 (E. & A.1934); and Holle v. D., L. & W.R.R. Co., 122 N.J.L. 358, 5 A.2d 874 (E. & A.1939). Contra: Wright v. Central R.R. Co. of N.J., 124 N.J.L. 113, 11 A.2d 20 (E. & A.1939) (decided by a 9--6 vote). Compare the majority and dissenting opinions in Pennsylvania Railroad Company v. Pomeroy, 99 U.S.App.D.C. 272, 239 F.2d 435 (D.C.Cir. 1956), cert. denied 353 U.S. 950, 77 S.Ct. 861, 1 L.Ed.2d 859 (1957).

The following expression from the Potter case, supra, is pertinent (113 N.J.L., at p. 444, 174 A. at p. 736):

'Of course, it is true as a practical matter that the vestibules of trans are largely for the very purpose of insuring against passengers being thrown off when passing from car to car. In fact, the custom is general of passing from car to car for any legitimate purpose. Take, for example, a through train with a dining car attached. The passengers have to go to the dining car and...