Goekel v. Erie R. Co.

• Decision Date: 20 October 1924
• Docket Number: No. 49.,49.
• Citation: 126 A. 446
• Parties: GOEKEL et al. v. ERIE R. CO.
• Court: New Jersey Supreme Court

126 A. 446

GOEKEL et al.

v. ERIE R. CO.

No. 49.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1924.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Fred Goekel and another against the Erie Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Parker, Emery & Van Riper, of Newark, for appellant.

Kalisch & Kalisch, of Newark, for respondents.

WALKER, Ch. This was, an action by the plaintiffs in the Essex common pleas against the Erie Railroad Company and Herbert E. Weyant, its locomotive engineer, to recover for personal injuries sustained by each of the plaintiffs by being collided with by a train of the railroad company, while the plaintiffs were in an automobile truck crossing the railroad tracks on a highway at grade, and plaintiff Goekel also sued for damages for injury to the truck, which was owned by him. The verdict was in favor of both plaintiffs against the railroad company, and in favor of the defendant Weyant against both plaintiffs. The defendant railroad company applied for and obtained a rule to show cause why the verdict should not be set aside and a new trial granted, reserving three certain exceptions; but afterwards filed twenty-nine reasons upon which it rested the motion for a new trial, and included in them were each and every one of the reserved exceptions, and also the following: (C) Because said verdicts in favor of plaintiffs are contrary to law, and (8) because the jury found for the plaintiffs against the defendant Erie Railroad Company, and in favor of the defendant Weyant, whereas they should have found verdicts for both defendants, since it appeared from the verdict of the jury that the defendant Herbert E. Weyant was not guilty of negligence, and the verdicts against the defendant Erie Railroad Company are contrary to the weight of the evidence, to the charge of the court, and are contrary to law,

After hearing, the trial court entered an order which recited the appearance of counsel for both sides, argument on the rule to show cause, and, that having duly considered the same, it was ordered that the rule to show cause be discharged. No opinion was filed by the court, but it is to be presumed that each and every reason was argued, and, whether so or not, all the reasons in support of the rule, as an effect of the order, are res judicata. McMichael v. Horay, 90 N. J. Law, 142, 100 Atl. 205. An application was then made for a rehearing on the rule to show cause, which was denied; but that is unimportant.

The Supreme Court in its per curiam properly held that the reserved exceptions were all covered in the reasons filed for a new trial under the rule to show cause, and that that was dispositive of the case on appeal under Faragasso v. Introcaso (N. J. Sup.) 121 A. 773, which holds that the Supreme Court cannot hear and determine the validity of exceptions reserved, after they have been considered and determined by the trial court on a rule to show cause why the verdict should not be set aside; and the judgment was therefore affirmed. And in the later case of Atkins v. Wellman, 2 N. J. Misc. Rep. 282, in the Supreme Court on appeal, it appeared that there had been a rule to show cause reserving exceptions, but the grounds of appeal were considered with the reasons, and acted upon by the trial judge on the rule to show cause. And the Supreme Court held that this was dispositive of the case on appeal under the doctrine of Faragasso v. Introcaso, supra, and cited the Supreme Court's opinion in the instant case (Goekel v. Erie R. Co., 2 N. J. Misc. Rep. 145) on that question.

However, defendant appellant contends here on this appeal that as judgment was rendered in favor of the engineer, Weyant, but against his employer, the Erie Railroad Company, and as Weyant, the engineer, stands exonerated from all negligence in operating and managing the engine, therefore the railroad company is not responsible for his negligent acts or omissions, upon the doctrine of respondeat superior, and, the servant being exonerated, the judgment against his employer, based upon the same acts or omissions, is without legal foundation and should be reversed. But this is only available to the defendant railroad company, if at all, on error assigned upon the record, assuming that the alleged error resides in the record. Error in law on the record is not the subject of exception at the trial and therefore is not waived by the obtaining of a rule to show cause without reservation of exceptions.

The ground of appeal in this cause in this court is that the Supreme Court erred in its judgment of affirmance. This is proper, and that takes us back to the grounds of appeal (errors assigned) in the Supreme Court, among which were (2) the court erred in giving judgment for plaintiffs against defendant railroad company, (10) because the judgment in favor of Weyant against both plaintiffs established that he was not guilty of negligence, and, as he was the servant of the defendant railroad company, the judgments ought by the law of the land to have been in favor of that company, and (11) because the judgment in favor of Weyant established that he was not guilty of negligence, and that the plaintiffs and each of them were guilty of contributory negligence, and the judgment in favor of the plaintiffs and against the defendant railroad company is erroneous and illegal.

These grounds of appeal raised the question of the legality of the judgments in law against the railroad company in the face of the judgment exonerating its engineer and servant Weyant, and called for decision in the Supreme Court, were it not for the fact that these very questions were submitted to the trial judge on the rule to show cause, they being reasons 6 and 8 on the rule above stated. This last reason (8) appears not to have been available in the Supreme Court because it not only counts upon error in the judgment as matter of law, but admixes with it questions of the verdict being contrary to the weight of the evidence and charge of the court, which is no proper assignment of error on the record. However, reason 6 on the rule to show cause, that the verdicts in favor of the plaintiffs are contrary to law, raised the question. Driscoll v. Carlin, 50 N. J. Law, 28, 11 A. 482.

Although it is true that where the duties of two joint tort-feasors are diverse, and the neglect to perform each is separate and disconnected, if the wrongdoing of one unites with that of the other in causing injury, the tort is joint and one or both may be sued; yet, if the jury negative the negligence charged against one, a verdict against the other is not objectionable. Matthews v. D. L. & W. R. R. Co., 56 N. J. Law, 34, 27 A. 919, 22 L. R. A. 261. That is this case. Here the two defendants were charged with jointly committing a tort, where their duties were, to an extent at least, diverse and disconnected, and, therefore, a verdict absolving one and holding the other is unobjectionable. The declaration set out a good cause of action against each defendant, as hereafter particularly set forth, and there can be no doubt that in such a situation one. defendant may be held alone if the proof justify it. Matthews Case, at page 37 (27 A. 919). And it must be assumed that the proof did justify it, for, on appeal, we are not concerned with the evidence. To support the...