Furey v. N.Y. Cent. & H. R. R. Co.

• Decision Date: 03 March 1902
• Citation: 51 A. 505,67 N.J.L. 270
• Parties: FUREY v. NEW YORK CENT. & H. R. R. CO.
• Court: New Jersey Supreme Court

51 A. 505

67 N.J.L. 270

FUREY

v. NEW YORK CENT. & H. R. R. CO.

Court of Errors and Appeals of New Jersey.

March 3, 1902.

(Syllabus by the Court.)

Error to supreme court.

Action by James Leo Furey against the New York Central & Hudson River Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

James B. Vredenburgh, for plaintiff in error.

James J. Furey and Charles C. Black, for defendant in error.

GARRISON, J. This is an action for damages for personal injuries received by the plaintiff upon the property of the defendant The property in question was an inclosed shed that covered the central portion of a river pier, and was occupied by longitudinal lines of railroad tracks, upon which freight cars were loaded and unloaded. While attempting to cross the southernmost of these lines the plaintiff was injured by the coming together of two freight cars, between which he was about to pass. The cars were moved by the defendant without actual notice to the plaintiff. The plaintiff's contention is that the defendant should have given some signal of the proposed movement of the cars, reasonably adapted to serve as a warning to him. This correctly states the plaintiff's right, if he was using the opening between the cars as a passageway by the invitation of the defendant The case therefore turns largely upon the question of Invitation, in its legal acceptation.

The plaintiff was a servant of a boss painter who was filling a contract with the defendant to paint the outside of its shed. He had been on this job about two weeks, and, at the time he was injured, was quitting work for the day. His errand in the interior of the shed was to exchange his working clothes for his street dress, which was on the second floor of the shed, and his purpose in passing between the cars was to reach a flight of steps at the west end of the building. He had been working outside upon the southeast corner of the shed. An accurate description of the premises, and of the uses to which they were put by the defendant, was given by the learned trial judge in his charge to the jury. I quote his language:

"You will remember the general structure of the pier. It was a projection something like seven hundred feet long into the water, and, I think, two hundred and twenty-five feet wide. It was covered by a shed two stories high, with a lantern running its length in the roof. The shed was some three to four feet within the exterior line of the pier on each side, and along the extreme edge of each side ran a stringpiece. There was an uncovered portion of the pier, on the east or river end, extending beyond the shed. A double-track railroad ran lengthwise through the center of the shed, depressed in a pit, as it was called, so that the floors of the cars were about on a level with the deck or floor of the pier; but on the south side of the pier, some four feet more or less, inside the wall, there ran a track laid on the floor of the pier, the rails being four inches above the level of the floor. This track ran from the yard into the pier at this south side, and extended nearly to the end of the shed, entering the pier on a slight incline; and in front of the shed, planks were laid, to make a level crossing over the rails. All along the south side of the pier there were openings with sliding doors, some twenty-two in number. Cars would be sent in on that south track, and there unloaded into barges or other vessels moored alongside the pier, in the water. The custom was to have the door of a freight car opposite one of the doors of the shed, so that goods could be transshipped directly from the car into the vessel alongside. In the nature of things, owing to the unequal length of cars, and the equal distances of the openings in the pier, there would have to be breaks in a tram of cars as they were placed on this south track. At times, also, it was desired to truck freight across from the main floor on the north of this track over to boats moored at the pier; and, to do that an opening between cars would be made by shifting cars along by hand or otherwise, and a bridging would be laid down across the tracks so that the freight could be moved over. The result was, as you will see, that in the ordinary course of business the train standing on this south track, which held eighteen cars in number, if it was solidly filled, would be broken up, with openings varying in their location, for convenient use."

From this excerpt two things are evident: First, that there was a way by which the plaintiff could have gone to and from his work without passing between the cars; and, second, that the openings between the cars resulted solely from the exigencies of the business transacted on the tracks, and had no relation to their use as passageways over the tracks. The significance of this latter fact will be apparent when application is made of the correct legal rule to the case presented by this joinder in error.

At the trial a motion to nonsuit the plaintiff was made at the close of his testimony, and also at the end of the case, upon the grounds that the plaintiff was, at most, a licensee on the tracks of the defendant; that the danger to which he exposed himself was open to his observation; and that his injury was not the result of any negligent act of the defendant These motions were denied, and the jury was, in effect, instructed that an invitation to the plaintiff to use the opening between the cars as a crossing might be implied from the knowledge of the defendant's servants that such a use was being made of the openings by the painters, and that if the plaintiff had been so invited, it was for the jury to say what sort of a notice ought to have been given for his protection. The errors assigned upon the exceptions that were sealed to these portions of the charge present substantially the same questions as those that were raised by the refusal of the court to nonsuit the plaintiff, and may be conveniently considered in connection with them.

Upon the case thus exhibited, the paramount question is not whether the plaintiff was upon the defendant's property generally by way of invitation, but whether, upon any aspect of the testimony, the defendant can be said to have invited the plaintiff to make use of the openings between the freight cars as crossings of the railroad tracks in its shed. For, as was aptly said by Mr. Justice Depue in Phillips v. Library Co., 55 N. J. Law, 307, 315, 27 Atl. 478, "the owner's liability for the condition of the premises is only coextensive with his invitation." The case of Diebold v. Railroad Co., 50 N. J. Law, 478, 14 Atl. 576, is an illustration of this phase of the rule, which is neither an exception to, nor a limitation of, the general doctrine of invitation, but only a specific application of it The same may be said of the so-called "Turntable Cases," in so far as th...