Breese v. Trenton Horse R. Co.

• Citation: 52 N.J.L. 250,19 A. 204
• Parties: BREESE v. TRENTON HORSE R. Co.
• Decision Date: 20 February 1890
• Court: United States State Supreme Court (New Jersey)

19 A. 204

52 N.J.L. 250

BREESE

v. TRENTON HORSE R. Co.

Supreme Court of New Jersey.

Feb. 20, 1890.

(Syllabus by the Court.)

Demurrer to narr.

S. D. Oliphant, Jr., and George M. Robeson, for plaintiff. Gilbert Collins, for defendant.

BEASLEY, C. J. There are six counts in this declaration, five of which are demurred to. We think the second and fourth counts are plainly bad. The following facts constitute the gravamen of each, viz., that the plaintiff "was on" one of the street-cars of the defendant, "and thereupon," in the language of the pleader, "it became and was the duty of the said defendant to guard, protect, and secure the said Edward Yard Breese in dismounting, descending, getting down, and removing himself from the said car; yet the said defendant, not regarding its duty in that behalf, did not use due and proper care to guard, protect, and secure the aforesaid Edward Yard Breese, whereby," etc. It will be observed that from the fact that the plaintiff was in a car of the defendant, it being a common carrier of passengers, the duty was imposed on it "to guard, protect, and secure" the plaintiff in the transaction of his leaving the car. But this description of the duty of the company is not the statement of a fact. It adds no force whatever to the case laid in the record, and therefore may, without loss, be always omitted; for it is simply and exclusively the pleader's averment of the legal efficacy of the facts stated. Obviously, such construction can have no effect on the mind of the court. With the facts before us, we ourselves must ascertain their legal force. In the present instance, we think the conclusion of the pleader is a plain non sequitur. From the mere fact of the presence of the plaintiff in the car of the defendant, it was not the legal consequence that an obligation arose on the part of the company to "guard, protect, and secure" the plaintiff when "dismounting, descending, getting down, and removing himself from the said car." The only service, in the particular in question, to be rendered by the carrier to even its fare-paying passengers, is to stop its car, on request, for a reasonable time, at a proper place; and, having done this, the duty "to guard, protect, and secure" the passenger in the act of leaving the car is incumbent, not on the carrier, but on the passenger himself. The fault of these counts is that they do not show, by a statement of facts, that the duty which they assert has been violated has any existence. The rule upon the subject is thus stated by Addison in his work on Torts: "'The decisions,' observes Lord Campbell, 'show that the allegation of duty in declaration is in all cases immaterial, and ought never to be introduced; for if the particular facts set forth raise the duty, the allegation is unnecessary, and if they do not$$$

it will be unavailing.' If the particular facts stated in the declaration do not raise the duty, it cannot be established by other facts not stated. The declaration therefore must stand or fall by the facts staled. Negligence creates no cause of action unless it...