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

• Decision Date: 05 March 1917
• Parties: FORTEIN et al. v. DELAWARE, L. & W. R. CO.
• Court: New Jersey Supreme Court

100 A. 194

90 N.J.Law. 137

FORTEIN et al.

v. DELAWARE, L. & W. R. CO.

Court of Errors and Appeals of New Jersey.

March 5, 1917.

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Action by Desire Fortein and by Pierre Fortein, her husband, against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Frederic B. Scott, of New York City, for appellant. William F. Burke, of West Hoboken, for appellees.

WALKER, Ch. This case presents an appeal from a judgment entered on a verdict of a jury in favor of the plaintiff Desire Fortein, for personal injuries, and of her husband, Pierre Fortein, for loss of services and expenses incident to his wife's injury.

The defendant was a common carrier of passengers by ferryboats plying between Hoboken in this state and a certain ferryhouse at the foot of Christopher street in the city and state of New York. The plaintiff Desire Fortein on a certain day became a passenger on one of the ferryboats of the appellant, which she boarded at Hoboken and departed from it after it tied up at the ferryhouse at Christopher street, New York. Upon leaving the boat, she walked along the passageway which had a plank floor and thereafter over an asphalt pavement, intending to go through a line of posts which marked the outward boundary of what was, apparently, the ferry premises, and the place from which trolley cars started. There were many other passengers, some in front and others behind her. The people were close around her, which necessarily obscured her view. Before reaching the posts, her foot got in a hole in the asphalt pavement, and she fell, receiving injuries which were the subject of her complaint. Over this asphalt pavement and extending to the line of posts was a covered shed upon the front of which was displayed the name of the company and the word "entrance."

The underlying question is as to whether the place where the accident happened was a portion of the ferry premises with respect to which it was the duty of the defendant to exercise reasonable care to make them safe for the use of the plaintiff and other passengers. Not only was this place under the shed and, as far as outward appearances were concerned, a portion of the ferry premises, but it was the way in which it was necessary for the passengers to cross upon entering the shed and alighting from trolley cars.

The grounds of appeal are two: (1) Because the trial court refused to direct a verdict in favor of the appellant; and (2) because the trial court refused to charge certain requests to the jury. It is unnecessary to particularize the subdivisions of the first ground. Such of them as are substantive will be treated of in the opinion. The second ground was not argued, and will therefore be considered to have been waived and abandoned and will not be considered in this court. State v. Heyer, 98 Atl. 413.

The Christopher street ferry property belongs to the city of New York and was the subject of a lease to the Hoboken Ferry Company, which was taken over by the appellant. The property leased includes the ferryslip, piers, and ferryhouse structure, and extends from a point in the Hudson river easterly to the sea wall or bulkhead at which the ferry was located. From the bulkhead easterly into West street, New York, was the superstructure of the ferryhouse building, and beyond the bulkhead and under the ferry structure shed were certain traffic posts owned by the appellant. These were placed on the asphalt pavement, which appellant claims is a continuation of the pavement of West street proper. It is in evidence that the employés of the appellant were accustomed to sweep up the entire asphalt pavement out to the row of posts through which, as already remarked, passengers to and from the ferryboats were compelled to go. Even if...