Bohn v. Hudson & M. R. Co.

• Decision Date: 05 March 1954
• Docket Number: No. A--194,A--194
• Citation: 103 A.2d 388,30 N.J.Super. 89
• Parties: BOHN et al. v. HUDSON & MANHATTAN R. CO. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 89

30 N.J.Super. 89

103 A.2d 388

BOHN et al. v. HUDSON & MANHATTAN R. CO.

No. A--194.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 23, 1954.

Decided March 5, 1954.

Arthur J. Blake, Jersey City, for appellant (Emory, Langan & Lamb, Jersey City, attorneys).

Hyman Tobin, Bayonne, for respondents (Raymond J. Cuddy, Bayonne, attorney).

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

The defendant maintains a station for its railroad passengers at Journal Square in Jersey City. On May 31, 1951 while descending the stairway to the platform below the plaintiff Florence A. Bohn slipped on the third step from the bottom and sustained bodily injuries for which she sought the recovery of compensatory damages in this action. Her husband, Edward A. Bohn, joined in the action Per quod.

At the trial the plaintiffs prevailed and the jury awarded damages in the sum of $6,500 to Mrs. Bohn and in the amount of $1,500 to her husband. From the consonant judgment the defendant appeals.

The complaint alleged that the defendant was negligent in that (a) it caused improper construction of the stairway, (b) it failed properly to maintain the stairway, (c) it failed to inspect, (d) it was remiss in correcting a dangerous condition there conspicuously existing, and (e) it permitted the dangerous condition to continue for a lengthy period of time. The pretrial order added the plaintiffs' explanation that 'the fall was occasioned by the fact that said step had attained a highly polished finish as a consequence of the wearing away of the carborundum strips.'

The point of paramount significance introduced for our determination by the present appeal relates to the challenged propriety of the court's denial of the defendant's motion for a favorable judgment at the conclusion of the trial. The specific insistence of counsel for the defendant is that there was no proof of any actionable negligence for which the defendant could be lawfully held responsible.

The theme of the defendant's proposition seems to be that a common carrier with knowledge or constructive notice thereof may maintain a stairway at its station the treads and nosings of which are so Slippery as to endanger the safety of its invitees and yet be exonerated by the law from liability for bodily injuries thereby occasioned where the hazardous slippery condition has resulted solely from the continued wear to which the steps have been subject.

This exceptional principle is said to be peculiarly applicable where the insecure condition is merely slippery and is caused solely by continued use. Such an enunciation of the law is said to be implicit in the decisions rendered in Garland v. Furst Store, 93 N.J.L. 127, 107 A. 38, 5 A.L.R. 275 (E. & A.1919); Walker v. F. & W. Grand Five-Ten-Twenty-Five Cent Stores, 137 A. 563, 5 N.J.Misc. 541 (Sup.Ct.1927), affirmed 104 N.J.L. 450, 140 A. 922 (E. & A.1928); and Costello v. Hudson and Manhattan R.R. Co., 145 A. 110, 7 N.J.Misc. 240 (Sup.Ct.1929).

In the field of the law of negligence, cited precedents must be discriminately examined in the light of the elements of factuality present in the particular case. Sometimes the bait hides the hook. Rarely in the family of analogous cases do you discover twins in all their salient factual features. The law exacts the exercise of reasonable care, but the legal term has a relative significance and in the abstract lacks that definitive quality which would supply a categorical solution of the question of liability in the particular and perhaps special circumstances of every case. Niles v. Phillips Express Co., 118 N.J.L. 455, 193 A. 183 (E. & A.1937).

Human life is profuse in dangers, variant and distinguishable in degree, exposure, and environment. Where they are of human creation or maintenance and perpetuation to the injury of another, the law not only recognizes their source but also their measurements. Are they common, usual, and in the natural order of things, or are they extraordinary, unusual, and exceptional in the experience of reasonably vigilant, cautious, and prudent persons? So the processes of discriminative rationalization enter lavishly into the administration of our law of culpable and actionable negligence. Exemplification of such judicial action relative to the condition of floors and stairways is noticeable in Abt v. Leeds & Lippincott Co., 109 N.J.L. 311, 162 A. 525 (E. & A.1932); Blessing v. Goodman, 133 N.J.L. 608, 45 A.2d 588 (E. & A.1946); Blessing v. Goodman 137 N.J.L. 395, 60 A.2d 69 (Sup.Ct.1948); Overby v. Union Laundry Co., 28 N.J.Super. 100, 100 A.2d 205 (App.Div.1953).

A standard is spoken of, that is, a model or example established in similar circumstances by contemporary custom or usage or practice. Prudence seems to be what contempory society deems it to be. Thus distinctions are drawn between the usual and the unusual, the standard and the substandard, the normal and the subnormal or abnormal conditions. Vide, Shipp v. Thirty-Second Street Corp., 130 N.J.L. 518, 521, 33 A.2d 852 (E. & A.1943).

The element of foresight and the likelihood of jeopardizing the safety of another is also envisaged by the law of negligence. The measure of reasonable care is often said to be that which is commensurate with the demands of reasonable foresight for harm. Common experience responsive to the law of gravitation has revealed that persons are more likely perchance to...