Delaware, L. & W. R. Co. v. Trautwein

• Decision Date: 20 February 1890
• Citation: 62 N.J.L. 169,19 A. 178
• Parties: DELAWARE, L. & W. R. Co. v. TRAUTWEIN.
• Court: New Jersey Supreme Court

19 A. 178

62 N.J.L. 169

DELAWARE, L. & W. R. Co.

v. TRAUTWEIN.

Court of Errors and Appeals of New Jersey.

Feb. 20, 1890.

(Syllabus by the Court.)

Error to supreme court.

Bedle, Muirheid & Magie, for plaintiffs in error. Leon Abbett and William F. Abbett, for defendant in error.

DEPUE, J. Emma Trautwein, the defendant in error, on Sunday, the 11th of September, 1887, was a passenger on a train of the Delaware, Lackawanna & Western Railroad Company from New York city to Lyndhurst, N. J. She took passage in the company's train, leaving New York at 9 o'clock in the evening, and reached Lyndhurst about 9:35 P. M. She alighted from the train, and in leaving the station to reach the street fell over some railroad ties, and received injuries for which this suit was brought. On a verdict for the plaintiff below, and judgment thereon, this writ of error was brought, and errors assigned upon the rulings of the trial judge. The act concerning vice and immorality provides that no traveling, worldly employment, or business, ordinary or servile labor, or work either upon land or water, (works of necessity and charity excepted,) shall be done, performed, or practiced by any person or persons within this state on Sunday. The penalty prescribed for violating this statute is the forfeiture of one dollar for every such offense, to be recovered upon conviction, and paid for the use of the poor of the township in which the offense was committed. Revision, p. 1227, § 1. The section contains a proviso that it should be lawful for any railroad company in the state to run one passenger train each way over its road on Sunday for the accommodation of the citizens of this state. This proviso has the effect not only to give to the company a right to run the specified trains on Sunday, but also confers the right upon the citizen to use such trains for ordinary travel. Smith v. Railroad Co., 46 N. J. Law, 7. As between the company and a passenger on its train, it would seem that the latter would have the right to assume that the train on which he is received as a passenger is the train run under the protection of the proviso, whatever effect the duplication of trains might have in subjecting the company to the penalty. There is also some evidence that the purpose of the plaintiff in going to New York on that day was to obtain from a physician a prescription and get medicine for her mother,—a purpose that would probably exempt the plaintiff from the penalty prescribed by the act. But an instruction to the jury, put on record in the bill of exceptions, put the plaintiff's case on a broader ground. The trial judge assumed that the company was running this train in violation of the statute, and that the plaintiff was also traveling in violation of the statute, and instructed the jury that these circumstances did not debar the plaintiff of her right to recover. If this proposition be sound, it will not be necessary to consider the rulings of the trial judge in construing the proviso, and with respect to the effects of the purpose of the plaintiff's journey on that day on her right to recover. In Massachusetts, Maine and Vermont it has been held adversely to the legal proposition adopted by the trial judge. In the federal courts, and in the courts of other sister states, the decisions have been in accordance with the ruling of the trial judge. A contract to carry made on Sunday, or to be performed on Sunday, is by force of the statute illegal and void. No action could be maintained for the breach of such a contract, nor for services performed under it, where the right of action rests exclusively upon a contract, express or implied. Reeves v. Butcher, 31 N. J. Law, 224. It is also clear that a plaintiff will fail where, to make a cause of action, he is compelled to rely upon an illegal contract. But the duty of persons engaged in these public employments to safely and securely carry is independent of contract. It is a duty imposed by law from considerations of public policy, and arises from the fact that persons or property are received in the course of the business of such employments. Marshall v. Railroad Co., 11 C. B. 655; Martin v. Railroad Co., L. R. 3 Exch. 9; Gladwell v. Steggall, 5 Bing. N. C. 733; Pippin v. Sheppard, 11 Price, 400; Carroll v. Railroad Co., 58 N. Y. 126. In Austin v. Railroad Co., L. R. 2 Q. B. 442, a suit was brought against a railroad company by a child three years and two months old. The plaintiff's mother, carrying the plaintiff in her arms, took a ticket for herself, but not for the child, for passage on the defendant's railway. In the course of the journey an accident happened, and the plaintiff's leg was broken. In a suit for this injury the defendants contended that they were under no contract with the plaintiff, and that they carried the plaintiff without any hire or fare paid for carrying him. The action was held to be maintainable. BLACKBURN, J., said that "the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but the fact of his being a passenger casts a duty on the company to carry him safely." The English cases to this effect are cited and commented on in Foulkes v. Railroad Co., 5 C. P. Div. 157-169. The rule may be considered as settled that a railroad company, having accepted a passenger, is under an obligation to take due and reasonable care for his safety, and that that obligation arises by implication of law, independent of contract. To give the plaintiff a standing in court to sue for the injury, she has no need of the aid of a contract which was illegal.

Nor was the plaintiff's violation of the Sunday law, in a legal sense, the cause of her injury. It was only the occasion for an injury by the defendant's wrongful act, and hence her wrong-doing did not contribute to the injury in such a sense as to deprive her of her right of action. It was merely a condition, and not a contributory cause, of the injury. Thus in White v. Lang, 128 Mass. 598, it was held that if a person, while unlawfully traveling on Sunday, is injured by the assault of a dog, the act of traveling was not a contributory cause of the injury, and that he could, notwithstanding his own violation of the law, maintain his action against the owner of the dog. In sustaining the suit, the court said: "If a person who is at the time acting in violation of law receives an injury caused by the wrongful or negligent act of another, he may recover therefor if his own illegal act was merely a condition, and not a contributory cause, of the in jury. * * * It is true that, if he were not traveling, he would not have received the injury; but the act of traveling is a condition, and not a contributory cause, of the injury." The ninety-second section of the road act (Revision, 1012) provides that all wagons and other wheel carriages of every kind or description, traveling or passing on the highways within this state, belonging to residents therein, shall track on the ground not less than four feet and ten inches, under the penalty of five...