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

• Decision Date: 02 March 1903
• Citation: 54 A. 822,68 N.J.L. 343
• Parties: FIELDERS v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

54 A. 822

68 N.J.L. 343

FIELDERS

v. NORTH JERSEY ST. RY. CO.

Court of Errors and Appeals of New Jersey.

March 2, 1903.

Dissenting opinion. For majority opinion, see 53 Atl. 404.

FORT, J. In this case I am unable to agree with the majority of the court. I should be willing to affirm upon the opinion of Mr. Justice COLLINS in the Supreme Court, reported in 50 Atl. 533. The conclusion reached by the Supreme Court in that opinion is, in my judgment, based upon a proper application of the police power, and also upon a wise public policy. I agree with Mr. Justice PITNEY in his opinion in this case, wherein he declares that "the plaintiff at the time of her injury was not in the exercise of her rights as a passenger in the act of leaving the defendant's car," and that, if she can recover, it is only upon the theory that the defendant, by a failure to repair the hole in the highway lying between its tracks, had failed to perform some duty which it owed to the plaintiff as one of the public. It is misleading, in my view, to refer to this ease as one in which the failure of the defendant is a failure to repair the surface of the street. The hole in the highway was at a street crossing, and abutting upon the rail of the track, or its foundation, and the failure to repair at this point was a failure to repair its tracks, within the well-recognized principles of law applicable to the duty to repair tracks, laid upon a railway company having a right to lay tracks in the public streets. The majority opinion in this case concedes that "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." This principle thus stated is clearly sustained by 2 Thorn, on Neg. (2 Ed.) § 358, cited in that opinion. I am at a loss to perceive how the duty to repair the hole between the tracks was not one of the duties to repair the track which was incumbent upon the defendant company under its implied obligation to so construct and maintain the rails of its track as that they should be free from dangers to persons lawfully using the highway. I regard the tracks as contemplating all between the rails as laid in the public highway.

The defendant's counsel, at the hearing and in his brief, admitted that, if the defendant company did not have actual knowledge of the condition of its tracks at the point in question, it was chargeable with such knowledge, because of the length of time the track had been in the condition it was at the time the plaintiff was injured; and, applying...