Brown v. Pub. Serv. Ry. Co.

• Citation: 121 A. 612
• Decision Date: 18 June 1923
• Docket Number: No. 42.,42.
• Parties: BROWN et al. v. PUBLIC SERVICE RY. CO.
• Court: United States State Supreme Court (New Jersey)

121 A. 612

BROWN et al.

v. PUBLIC SERVICE RY. CO.

No. 42.

Court of Errors and Appeals of New Jersey.

June 18, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Suit by Etheldreda Brown, by her father and next friend, James P. Brown, and James P. Brown in his own right, against the Public Service Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

On appeal from the Supreme Court in which the following per curiam was filed:

"The plaintiff was a passenger. In alighting from a street car she was injured by reason of a depressed Belgian block in the pavement. The court allowed a rule to show cause reserving all exceptions pending the hearing of the rule. On the hearing it was ordered that the rule be made absolute unless the plaintiff consent to a reduction of the verdict. The plaintiff did consent, but no further rule seems to have been entered, and the defendant took an appeal under the exceptions reserved. It is now urged that these exceptions are not sufficient because the points were not expressly reserved in the rule. The reservation seems to be in the usual form, and we see no reason to think that there was indefiniteness about reserving all the exceptions. Nor is there any force in the suggestion that the reservation lasted only pending the hearing of the rule. If it were so, the rule is still pending, as it was made absolute upon a condition that the plaintiff should consent to a reduction of the verdict, and the plaintiff has consented. This deprives the defendant of the right to a new trial which would otherwise be involved in making the rule absolute, but the assent of the plaintiff to the reduction does not amount to a discharge of the rule, and no such order has been made. Nor is there any greater force in the argument that the suit was brought in the common pleas. If the rule of the Supreme Court is improperly taken, the plaintiff should move to dismiss the rule; but there is no reason why, if the rule is properly taken to the Supreme Court, the defendant should not avail itself of all the exceptions which have been reserved. As to the meritorious features of the case only two exceptions are argued.

"The action is brought, as the complaint avers, to recover damages for the carelessness and negligence of the defendant's servants and agents, operating and in control of a street car, in that they stopped the car, opened the door, and invited passengers to alight at an unsafe place, where a hole or opening existed, formed by a switch and defendant's rails laid in the street, and in that defendant's servants and agents failed to exercise care to hold the car at places where passengers may safely alight; and failed and neglected to warn the plaintiff of the dangerous hole or opening when she was alighting. Clearly, the plaintiff counted, as the complaint avers, on negligence of the defendant.

"The judge charged: 'I think the question in this case for the jury to determine is as to whether when she alighted from this car there was a depressed Belgian block.' 'The whole question in this case, as I "see it, is the question of fact as to whether there was this hole in the pavement, and, if there was this hole in the pavement, the question for the jury is then whether the defendant company provided a reasonably safe place for this young lady, the passenger of the defendant company, to alight.' He also charged: 'You are to confine your deliberations entirely to what happened to her on the day in question, as to whether the condition of her foot was brought about by any hole in the paving, and that it was an unsafe place for her to alight or a reasonably unsafe place.'

"The expression 'reasonably unsafe place' is probably a misprint, but, laying that aside, the judge failed to charge that the jury were to find whether there was negligence on the part of company. His charge permitted a judgment for the plaintiff in case the jury found the physical situation to be as he stated, but this was not the legal question. The legal question was, granting the existence of the physical situation, did it show on the part of the defendant company or its employees negligence in permitting a depressed Belgian block or an imperfection in the paving at that point. The situation may be so recent that the company has had no chance to repair it. It may be such as 'to be beyond the company's control and in the control of the city.' Various other situations may be thought of, where the physical situation might be just as it is in this case, and negligence be negative. At any rate, the defendant has the right to have the question of negligence or no negligence submitted to the jury, and this the judge failed to do. The case is governed by Foley v. Brunswick Traction Co., 66 N. J. Law, 637, 50 Atl. 340; Mason v. Erie R. R. Co., 75 N. J. Law, 521, 68 Atl. 105.

"We note an inadvertence in entering the judgment which is a single judgment for both plaintiffs in the full amount claimed by both without distinguishing between the amount awarded by the jury to Etheldreda Brown and the amount awarded to her father, James F. Brown. It is not important, since the judgment must be reversed for the errors already stated."

Albert S. Woodruff, of Camden, for appellants.

Leonard J. Tynan, of Newark, for respondent.

WALKER Ch. This was a suit for damages in the Camden common pleas for injuries sustained by Miss Brown, and the plaintiffs had a verdict upon which judgment was entered. Application was made within time for a rule to show cause, and it was ordered that plaintiffs show cause why the verdict should not be set aside and a new trial granted, and that pending the hearing of the rule execution be stayed and all exceptions taken in the cause be reserved. Hearing was had before the trial judge, and it was afterward ordered that the rule to show cause be made absolute unless the respective plaintiffs should enter rules consenting to a certain reduction of the verdict, etc., and it was ordered that the rule should be made absolute as to the plaintiff who failed to accept such reduction, and be discharged as to the plaintiff who accepted it. Both plaintiffs accepted the reduction and the judgment was reduced. Thereafter defendant appealed to the Supreme Court, filing grounds of appeal but not an appeal in form, which grounds have been treated as a notice of appeal and grounds, which may be combined. See Supreme Court rule 139.

In the Supreme Court plaintiffs-respondents made the point that the exceptions were not sufficient because they were not expressly reserved in the rule to show cause. Supreme Court rule 129 provides that such a rule to show cause shall be a bar against taking or prosecuting an appeal except on points expressly reserved in the rule. The language in the case at bar was that all exceptions be reserved. The word "expressly" was not used, nor were the exceptions taken specifically stated. The Supreme Court on this point observed in its opinion that the reservation seems to be the usual form and that it saw no indefiniteness in reserving all exceptions. This is correct. The cases refer to reserving exceptions, not expressly reserving them. See Ashhurst v. Atlantic, etc., Co., 66 N. J. Law, 16, 48 Atl. 999; Holler v. Ross, 67 N. J. Law, 60, 50 Atl. 342. "Exp...