Brennan v. Pub. Serv. Ry. Co.

• Decision Date: 03 February 1930
• Docket Number: No. 2.,2.
• Citation: 148 A. 775
• Parties: BRENNAN v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

148 A. 775

BRENNAN

v. PUBLIC SERVICE RY. CO.

No. 2.

Court of Errors and Appeals of New Jersey.

Feb. 3, 1930.

(Syllabus by the Court.)

Whether or not appellant's decedent was a passenger on respondent's trolley car, the proofs being in conflict, was a matter requiring submission to the jury for settlement.

Where one, who is sui juris, takes a position upon a vehicle of a common carrier, such as appellant's decedent did, and proceeds to ride in a populous community in such a position, liable, and likely, to come into contact with vehicular traffic, he unquestionably and as a matter of law assumes the risk of collision therewith and resulting injury. New York, Lake Erie & Western R. R. Co. v. Ball, 53 N. J. Law, 283, 21 A. 1052; Menger v. Laur, 55 N. J. Law, 205, at page 216, 26 A. 180, 20 L. R. A. 61; Barlow v. Jersey City, etc., Ry. Co., 67 N. J. Law, 364, 51 A. 463.

The doctrine of last clear chance has never been adopted or applied by the courts of this state and is clearly contrary to the principles applied in Menger v. Laur and in Barlow v. Jersey City, etc., Ry. Co., supra.

(Additional Syllabus by Editorial Staff.)

The Chancellor and Justice Lloyd, dissenting.

Appeal from Supreme Court.

Action by George Brennan, administrator ad pros, of the estate of Eugene Brennan, deceased, against the Public Service Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

James Mercer Davis, of Camden, for appellant.

William H. Speer, of Newark, for respondent.

CAMPBELL, J. Appellant's decedent was a soldier encamped at Camp Raritan. On September 14, 1918, he boarded a car of the respondent to go to New Brunswick. The seating capacity of the car was 45 to 50, and it had at least 125 passengers at the time of the happening. The undisputed proof is that the deceased and another soldier, and a civilian by the name of Sutton, were standing on the left-hand forward step of the car, at the motorman's platform. The door was closed and had at no time been opened to admit passengers. These three persons were hanging onto or supporting themselves by stanchions or other fixtures upon the car. Upon reaching New Brunswick the decedent either fell off or was crushed by, and brushed off, the car upon which he was riding, by a trolley car passing in an opposite direction on a parallel track, and he died from the injuries so received. Upon a trial of an action for damages for his death, the trial court directed a verdict for the defendant-respondent. From the judgment entered thereon the plaintiff below appeals, urging three grounds for reversal, viz.:

1. Refusal of the trial court to permit an amendment of the complaint alleging a custom of the defendant to permit passengers to ride on the outside of its cars.

This was a matter within the sound direction of the court and ordinarily would not present a ground of appeal; but here, under all the circumstances, it is without merit in fact, l>ecause not only was such amendment permitted, but proofs were attempted to be made in substantiation thereof but without success.

2. That it was error to grant a nonsuit. This is without merit in fact. Although such a motion was made, the record shows it was denied.

3. That it was error to direct a verdict in favor of the defendant below—

(a) Because decedent was a passenger and entitled to a high degree of care, and the question of negligence should have been submitted to the jury.

The proofs present a...