Giardini v. McAdoo

• Citation: 107 A. 437
• Decision Date: 20 June 1919
• Docket Number: No. 54.,54.
• Parties: GIARDINI v. McADOO, Director General of Railroads.
• Court: United States State Supreme Court (New Jersey)

107 A. 437

GIARDINI

v. McADOO, Director General of Railroads.

No. 54.

Court of Errors and Appeals of New Jersey.

June 20, 1919.

Syllabus by the Court.

Additional Syllabus by Editorial Staff.

Appeal from Circuit Court, Camden County.

Action by Adele Giardini, administratrix of William Giardini, deceased, against William G. McAdoo, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed on the question of liability, and reversed on the question of damages and a new trial ordered.

Bourgeois & Coulomb, of Atlantic City, for appellant.

Albert S. Woodruff, of Camden, for respondent.

WALKER, Ch. This appeal is from a judgment upon a verdict for plaintiff at the Camden circuit, and defendant appeals to this court. No objections were made as to parties or pleadings. Issue was joined, and the case was tried upon its merits.

The facts are: William Giardini, the husband of Adele Giardini, was killed by a train in the tunnel approach to the West Philadelphia, Pa., station of the Pennsylvania Railroad system, on the evening of February 1, 1918. He resided in Camden, N. J., and worked at Essington, Pa. As was his custom, he boarded a Philadelphia train leaving Essington that afternoon. The train was scheduled to make no stops until the West Philadelphia station was reached. It consisted of coaches equipped with vestibule doors, and traps closing over the steps, so that the platforms could be kept entirely closed while the train was in motion. These precautions had been taken on other occasions when Giardini had been a passenger on the train. Giardini rode standing just outside of a car door on its front platform. That car and the one in front were so filled with passengers that many could not enter and were forced to remain out on the platforms. The conductor passed through the train and took the tickets of the passengers on the platforms. Neither vestibule doors nor the step coverings were closed. Just before the train reached the station at West Philadelphia, it stopped for a moment, and the passengers, apparently believing it to be the station stop, pushed out of the cars. Giardini was crowded off the platform and down the steps. Had the vestibule doors been closed and the trap shut he could not have been forced off the train. There was no train hand at either of the platforms, no warning was given of a premature stop, and the train again and almost immediately started without warning. Giardini's dismembered body was later found at that point, distant about 360 feet from the passenger platform.

The grounds of appeal are: (1) Because the trial judge refused to direct a verdict against the plaintiff and in favor of the defendant at the close of the testimony in the case: (a) Because there was no proof of negligence on the part of the defendant; (b) because the defendant assumed the risk of injury. (2) Because the court refused to charge that where a person boards a crowded train and is unable to enter the cars and rides on a platform he assumes the risk, and, if jostled off the train by the crowd, there can be no recovery. (3) Because the declaration and record in the cause fail to show a right in the plaintiff to prosecute this suit. (4) Because the declaration and record show that there is no right of recovery in the plaintiff. (5) Because the declaration and record fail to show a right of recovery against the defendant in New Jersey, for an injury and death which occurred in Pennsylvania. (6) Because it appears from the declaration and record that there is no right of recovery against the defendant.

As to the first reason assigned for reversal, the judgment should not be disturbed if there were any proof of negligence on the part of the defendant company, and not unless it be shown as matter of law or fact that the defendant assumed the risk of injury. There was such proof, and assumption of risk was not shown.

The law of Pennsylvania is applicable in this case, being enforced here by way of comity. Lower v. Segal, infra. Joseph Conwell, Esquire, a member of the bar of that state, practicing in Philadelphia, was sworn for the plaintiff and testified that he had made an examination of the law of Pennsylvania with respect to the duty of a common carrier in the circumstances of this case, and that that duty is to exercise the strictest vigilance, not only in carrying the passenger, but in setting him down at a station, and that it is also the duty of the carrier to announce the name of the station, and when it has been announced, if the train stops prior to arriving at the station, or if it goes beyond, it is the duty of the carrier to warn the passengers not to alight, and, if the carrier fail to do so, it is liable in damages for the consequences of the negligence; that if a passenger is permitted to remain on the platform of a car, and has paid his passage, the carrier owes him a greater degree of safety; that a passenger does not assume the risk in boarding a crowded train; if the carrier permits him to remain there, it would be liable for the neglect to carry him safely.

Clarence P. Culin, Esquire, likewise a member of the Pennsylvania bar, practicing in Philadelphia, was called by the defendant and gave testimony as to the state of the law of Pennsylvania bearing on the question at issue between the parties. Quite aside from any conflict between his testimony and that of Mr. Couwell—and the law of the foreign forum was to be found by the jury as a fact (Fithian v. Penna. R. R. Co., 01 N. J. Law, 275, 103 Atl. 193)—Mr. Culin, in response to question on cross-examination, which assumed that there were doors and platforms on the car in question, was asked if he did not think the law would hold that the company ought to close them, and he replied that the highest degree of care would require the closing of the doors and platforms.

In the situation of the proofs to which the first ground of appeal is pertinent, the case was properly submitted to the jury, and it was not error for the trial judge to refuse to direct a verdict for defendant.

Mr. Conwell testified, as already stated, that according to the law of Pennsylvania a passenger does not assume risk on boarding a crowded train, and that if the carrier permits him to remain there it would be liable for neglect to carry him safely. As the jury were by law required to consider this testimony on the question of negligence, the judge did right in refusing to charge the jury that, where a person boards a crowded train and is unable to enter the cars and rides on a platform, he assumes the risk, and if jostled off by the crowd there can be no recovery for injury thus inflicted. The second ground of appeal is therefore untenable.

The sixth ground of appeal is but a reiteration of the third and fourth. The three grounds, numbered from 3 to 5, inclusive, are argued together in the brief of counsel for appellant. And this because they raise, practically, the same question, that is, whether or not the cause of action prosecuted in this case lies at all in this state. In support of the contention that the action does not lie, counsel for the defendant appellant relies upon Lower v. Segal, 59 N. J. Law, 66, 34 Atl. 945, and Rankin v. Central Railroad, 77 N. J. Law, 175, 71 Atl. 55.

Before examining into this question, it may be well to state what the pleadings disclose, and also what the insistence is, to the effect that the right of action for damages resulting from the death of the deceased, if any, arose under, and is governed by, the law of the state of Pennsylvania, and is unenforceable here.

The pleadings, shortly, disclose that on February 1, 1918, the defendant corporation operated a steam railroad from Chester to Philadelphia, in Pennsylvania, and at Philadelphia maintained a tunnel for its tracks, and the passage of its trains, underneath the city streets, and, also, a station with platforms, where passengers were received and discharged, at Thirty-Second and Market streets; that, on the evening of the day named, William Giardini, plaintiff's intestate, who was also her husband, boarded a train at Eddystone, between Chester and Philadelphia, and became a passenger to the station mentioned, in the latter city; that the train was a through one, scheduled to make no stops between Eddystone and the Philadelphia station; that, when prematurely it stopped in the tunnel, Giardini, through the sole negligence of the defendant, its servants and agents, was run over by the train when it again started, was crushed and killed; that the negligence of which defendant was guilty consisted in the fact that the vestibule door and platform of the car on which deceased was a passenger were permitted to be and remain open, and the car to be overcrowded with passengers, and no agent or servant of the company was at or upon the platform to protect Giardini from being pushed therefrom by such overcrowding; that no warning was given by defendant, its servants or agents, that the stop was not for the purpose of having its passengers alight, and the train was again started without warning being given or care being taken as to passengers who might have alighted by mistake or been forced from the train by overcrowding; that Giardini left him surviving his widow, Adele Giardini, the plaintiff, and five minor children; that letters of administration ad prosequendum were granted to the plaintiff on July 24, 1918, by the surrogate of Camden, and plaintiff claimed damages. The answer, after ad mitting and denying certain statements of fact in the complaint, pleaded two grounds of defense: (1) That there was no negligence on the part of the defendant, its servants, agents, and employes, in the premises; and (2) that there was contributory negligence on the part of the plaintiff's intestate. Upon issue joined on these pleadings, the parties went to trial. The testimony disclosed that the accident, resulting in the death of Giardini, occurred in the ...