Bernadsky v. Erie R. Co.

• Decision Date: 15 June 1908
• Citation: 76 N.J.L. 580,70 A. 189
• Parties: BERNADSKY v. ERIE R. CO.
• Court: New Jersey Supreme Court

70 A. 189

76 N.J.L. 580

BERNADSKY

v. ERIE R. CO.

Court of Errors and Appeals of New Jersey.

June 15, 1908.

Error to Supreme Court.

Action by John Bernadsky against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The per curiam opinion of the Supreme Court is as follows:

"The plaintiff brought suit to recover damages for personal injuries sustained by him on November 6, 1902, and resulting from an assault committed on him by the defendant Burns, while the latter was in the employ of the defendant the Erie Railroad Company. The plaintiff was about seven years of age at the time of the alleged assault. At the trial of the cause the jury rendered a verdict in favor of the plaintiff, and judgment was entered thereon.

"The defendant the Erie Railroad Company sues out this writ of error, and assigns, first, that there was no evidence upon which the verdict against it could be sustained. The case made by the plaintiff was that, while he was in the yards of the defendant company at Weehawken, he was attacked and beaten with a stick by Burns, and was bitten by a dog belonging to Burns, which the latter 'sicked' upon him. The contention on the part of the defendant railroad company is that there was nothing in the proofs to show that, in committing the alleged assault, Burns was acting within the scope of his employment, as its servant. We think the jury could properly find, from the testimony of the plaintiff, and of the defendant Burns, that the plaintiff was a trespasser in the company's yard; that Burns, in the discharge of his duty as watchman, undertook to drive him off; that in doing so he committed the assault referred to; and that this abuse of the plaintiff was unnecessary and excessive. It is contended, on behalf of the defendant in error, that the testimony of Burns could not be considered by the jury in determining the question of the liability of the railroad company. No reason is given by counsel in support of this contention, and it seems to us to be without merit.

"It is also assigned for error that the court improperly permitted the jury, in determining the compensation to which the plaintiff was entitled (in case a verdict should be found in his favor), to consider the mental suffering subsequently undergone by the plaintiff as a result of the attack upon him. There was no error in this judicial action. In the case of Consolidated Traction Co. v. Lambertson, 60 N. J. Law, 457, 38 Atl. 684, it is...