Fielders v. N. Jersey St. Ry. Co.

Citation53 A. 404,68 N.J.L. 343
PartiesFIELDERS v. NORTH JERSEY ST. RY. CO.
Decision Date17 November 1902
CourtUnited States State Supreme Court (New Jersey)

(Syllabus by the Court.)

Error to supreme court.

Action by Louise E. Fielders against the North Jersey Street Railway Company. Judgment for plaintiff was affirmed by the supreme court (50 Atl. 533), and defendant brings error. Reversed.

George T. Werts, for plaintiff in error.

Frederick E. Hodge and Samuel Kalisch, for defendant in error.

PITNEY, J. So far as the opinion of the supreme court bases the affirmance of the Judgment of the trial court upon the theory that the plaintiff at the time of her injury was in the exercise of her rights as a passenger in the act of leaving the defendant's car, it cannot be sustained. Whatever inference might have been drawn from the evidence upon that subject is a matter of no consequence, for no verdict has been rendered against the defendant upon the ground of neglect of any duty that it owed to the plaintiff as a passenger. The trial court charged the jury (apparently with the acquiescence of plaintiff's counsel) that the evidence sufficiently showed that the plaintiff had left the car, and, being in safety upon the highway, was thenceforth a traveler upon the highway, and subject to all the duties and obligations imposed upon such travelers, and thereupon proceeded to submit the case to the jury solely upon the question whether the defendant had been guilty of a breach of duty owed by it to the plaintiff as a traveler upon the highway. The verdict and judgment, having gone upon this theory, cannot be sustained upon the theory that the defendant's conductor had negligently misdirected the plaintiff about alighting from the car and reaching the sidewalk, or had negligently stopped the car at an unsafe and improper place. The defect in the pavement, therefore, instead of being a mere circumstance to be viewed with other circumstances as bearing upon the question of negligence in stopping the car, or negligence in directing the plaintiff towards her destination, becomes the essential fact upon which alone the negligence of the defendant company is to be predicated. And if the judgment can be sustained, it must be upon the ground that the plaintiff has an action against the defendant for a personal injury occasioned by the nonrepair of the street pavement, while she was a foot passenger upon the street, and irrespective of the consideration that she had ridden upon the defendant's car. The defect in question was a deep hole in the street pavement between the rails of the track, and, according to the plaintiff's evidence, this was the immediate occasion of her injury. There was evidence tending to show that the hole was the result either of nonrepair or improper repair of the pavement, and that it had existed for a sufficiently long time to put the defendant upon notice, if the defendant was bound, in law, to take notice of the condition of the pavement. Of course, if the defendant was under an absolute duty to repair the pavement, it was at the time under a duty to observe its condition. Therefore in all aspects the case was one proper for the jury's consideration, if there existed a legal obligation upon the defendant to repair the pavement. There is nothing in the case to show that the pavement in question had been laid or maintained by the defendant, or that the defect resulted from any act of commission on the defendant's part. Nor is there anything to connect the defect with the defendant's rails or sleepers, or to show that anything done of omitted in the construction, maintenance, or operation of the railway produced the defect The location of the hole between the rails is a mere circumstance, without causative significance. And the only default attributable to the defendant is the failure to repair.

It is familiar law that a railway company, having the right to lay tracks in a public street, is bound, by the general principles of the common law, and without either a specific statute or ordinance or a contractual obligation, to lay its tracks in a proper manner, and to keep them in a proper state of repair. 2 Thomp. Neg. (2d Ed.) § 1353. But the question of the liability of such a company for failing to keep the surface of the street in repair is quite a different question. Such a liability does not result from the mere fact that the corporation has been vested with a franchise or license of using the public street. The liability to maintain the pavement as such, if it exists, must either be rested upon some valid statute or ordinance imposing such a duty, or must arise out of the obligations of a contract. It has been repeatedly held that where some burden is lawfully imposed by a municipality upon a street railway company as a condition of the grant of its franchise, the acceptance of such a condition by the company constitutes a contract between the company and the municipality. Wilbur v. Railway Co., 57 N. J. Law, 212, 31 Atl. 238; Cape May, D. B. & S. P. R. Co. v. City of Cape May, 58 N. J. Law, 505, 34 Atl. 397; City of Cape May v. Cape May Transp. Co., 64 N. J. Law, 80, 44 Atl. 948; Dean v. City of Paterson (N. J. Sup.) 50 Atl. 620. Were an ordinance of such a character invoked in the present case, the question would remain whether the plaintiff, having no privity therein, could sue tor a breach of its provisions. In Appleby v. State, 45 N. J. Law, 165, Mr. Justice Depue, speaking for this court said: "A duty, the breach of which is an actionable wrong, may arise from a contract, or be imposed by positive law, independent of contract. In the first case the party to the contract only can sue. In the other case any person injured may sue, if he be one of the class of persons for whose benefit the duty is imposed." The rule here recognized was enforced by the supreme court in Safe Co. v. Ward, 46 N. J. Law, 19; Styles v. F. R. Long Co. (N. J. Sup.) 51 Atl. 710. But the present case is devoid of evidence to show that any liability for the repair or maintenance of the street pavement was imposed upon the defendant as a condition of its right to exercise its franchise, or that the defendant, by any contract, has undertaken such a duty. The plaintiff introduced in evidence an ordinance adopted by the board of street and water commissioners of the city of Newark, September 6, 1894, purporting to apply to all street railways, and imposing upon the operating companies the duty of paving, repaving, and repairing the space between the rails. Its terms will be set forth more fully below. Defendant's duty to repair was rested upon that ordinance alone. The trial court, and also the supreme court, treated it as a valid police regulation, imposing an absolute duty upon the defendant for the general benefit of the traveling public, so that an action would lie at the instance of any traveler injured through a neglect of the imposed duty to repair the pavement. The bill of exceptions clearly raises the question whether a duty of repair was lawfully imposed upon the defendant by the ordinance in question, and whether the plaintiff, as a traveler upon the highway, was one of the class for whose benefit that duty was imposed.

It is certainly well settled that a specific duty, the violation of which is actionable, may arise from a valid statute or municipal ordinance, as well as from the general principles of the common law. Familiar examples among our statutes are the so-called law of the road (Gen. St. p. 2823, § 91), and the requirement that a railroad locomotive shall sound a bell or whistle on approaching a highway crossing (Gen. St p. 2645, § 29). The books contain many cases arising out of breaches of the latter duty. The duty imposed upon railroad companies "to use all practicable means to prevent the communication of fire from any locomotive engine," and making them liable in damages to the person injured, is an instance. Gen. St. p. 2670, §§ 13, 14; Railroad Co. v. Salmon, 39 N. J. Law, 299-303, 23 Am. Rep. 214. So is the duty to provide spark arresters. Gen. St. p. 2671, §§ 15, 16; Wiley v. Railroad Co., 44 N. J. Law, 247; Hoff v. Railroad Co., 45 N. J. Law, 201; Railroad Co. v. Abbott, GO N. J. Law, 150, 37 All. 1104. So, doubtless, are such of the provisions of the act relating to factories, etc. (Laws 1885, p. 212; Gen. St. p. 2345), as are expressly designed for the personal safety of the operatives. Other instances may be cited. Nor does there seem to be any distinction between a valid statute and a valid ordinance, in respect to the binding force of a duty created thereby. A lawful municipal ordinance is an exercise of the delegated power of legislation, and is the law of the place. When adopted in the exercise of that power which is commonly called the "police power," ordinances frequently prescribe for persons subject thereto a rule of conduct, for the purpose of insuring the safety of others. Familiar instances of municipal ordinances imposing duties, for a breach of which an action may be maintained by any person specially injured, are those regulating the speed of vehicles in streets, those requiring railroad companies to place gates or flagmen at street crossings, those regulating excavations in the streets, the use of explosives, and the like. In Express Co. v. Nichols, 32 N. J. Law, 166-169; Id., 33 N. J. Law, 434-441, 97 Am. Dec. 722,—the plaintiff was attempting to pass along a sidewalk in the city of Newark, when he was caught and injured by the wagon of the defendant being backed up to the side of the building adjoining the walk for the purpose of taking in packages from the building. The fact that the wagon was thus backed in violation of a city ordinance was a circumstance considered as material by the supreme court and by this court, upon the question of defendant's negligence. In West v. Transportation Co., 32 N. J. Law, 91; Transportation Co. v. West, 33 N. J. Law 430,—the plaintiff was watching a railroad train...

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    ...69 N.J.Super. 57, 68, 173 A.2d 520 (App.Div.1961), certif. den., 36 N.J. 138, 174 A.2d 924 (1961); Fielders v. North Jersey St. Ry. Co., 68 N.J.L. 343, 53 A. 404 (E. & A. 1902); Zemetra v. Fenchel Realty Co., Inc., 134 N.J.L. 358, 47 A.2d 890 (Sup.Ct.1946), aff'd 135 N.J.L. 205, 50 A.2d 895......
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    ... ... abutting property owners to maintain sidewalk pavements, or ... to clean ice and snow from the walks.’ Fielders v ... North Jersey Street Ry. Co., 68 N.J.L. 343, 352, 53 A ... 404, 407,54 A. 822,59 L.R.A. 455, 96 Am.St.Rep. 552. ‘ ... When a statute ... ...
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