Harpell v. Public Service Coordinated Transport

• Decision Date: 12 May 1955
• Citation: 35 N.J.Super. 354,114 A.2d 295
• Parties: Albert E. HARPELL, Plaintiff-Respondent, v. PUBLIC SERVICE COORDINATED TRANSPORT, etc., Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 354

35 N.J.Super. 354

114 A.2d 295

Albert E. HARPELL, Plaintiff-Respondent, v. PUBLIC SERVICE COORDINATED TRANSPORT, etc., Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued April 25, 1955.

Decided May 12, 1955.

Luke A. Kiernan, Jr., Newark, argued the cause for defendant-appellant.

Thomas F. Hueston, Elizabeth, argued the cause for plaintiff-respondent.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

Defendant, a common carrier of passengers for hire, appeals from a judgment entered upon a verdict of a jury for damages in favor of plaintiff in an action to recover for injuries sustained while a passenger in an electric trolley car operated by defendant.

On February 6, 1953, in late afternoon, plaintiff boarded the trolley at the Broad Street underground station of the defendant's 'city subway' line. He took a seat on the left-hand side of the trolley about eight seats from the front, adjacent to the window. This line emerges from underground a short distance thereafter and continues on a private right-of-way leased by defendant from the City of Newark. Several minutes later, while the car was approaching an overpass for passengers at the Park Avenue Station, the plaintiff heard a tinkle of glass and felt an 'explosion or shattering' at his head and blood gushing from above his left eye. The injury resulted in plaintiff's loss of the eye. It was caused by the throwing of a jagged piece of concrete and pebble mixture through the window of the trolley by a boy of about fifteen years of age from a point beyond a cyclone-type fence bordering the right-of-way. The boy's precise position was disputed by defendant's witnesses.

The operator of the trolley testified that at a point identified as about 150 feet before the overpass he saw the boy with what seemed a rock in his hand standing some distance behind the fence, his arm raised as though poised to throw. The fence was seven or eight feet high. He 'waved to him not to throw it,' and, as he 'figured maybe he wouldn't throw it,' kept on going. He also testified that he 'figured that by the time he threw it he would miss the car because the speed and the throw would be different.' Shortly thereafter he heard the crash of the missile.

Another passenger testified that the boy who threw the rock stood close to the fence where it borders a stairway leading to the overpass and that at that point the fence was the height of the boy's waist; that he saw the boy 'winding up; and as the trolley passed I put my hand up because I thought the stone was coming in my window, but it came in two windows in front where the plaintiff was sitting.'

There was evidence that the trolley windows are covered on the outside by metal screens from the sill to about midway, installed to prevent protrusion of arms by passengers. The object which struck plaintiff came through the window above the screen. The windows on the trolley were of ordinary glass.

Defendant's answers to interrogatories specified 16 instances in four years prior to the accident of its attention being called to the throwing of objects at or into its trolleys in the general vicinity of this occurrence, seven of these being during the last year. Its supervisor testified he received reports of such instances on an average of one a month. A Newark police officer testified defendant had called this condition to the attention of the authorities over a period of time and that three such incidents had occurred within a two-day period in January, 1953; that special assignments of patrolmen to police the situation were made by emergency order on January 15, 1953. The operator of the trolley here involved testified that rock throwing by boys in the vicinity of the accident 'wasn't unusual,' that it usually occurred near the rush hours and sometimes happened 'every other day.'

The appeal is basically on the ground that there was no evidence of negligence on the part of defendant warranting submission of the case to the jury and that the trial court was therefore in error in refusing to grant defendant's motion for judgment at the conclusion of the submission of evidence. It urges that there is no showing that it failed to use standard equipment on the trolley or known mechanical devices which might have prevented the accident; that the evidence as to prior similar incidents was not competent or material; and that a carrier's obligation to carry its passengers with a high degree of care for their safety does not extend to dangers emanating from the mischievous or malicious acts of persons not on its premises or subject to its control. The point last noted is one of first impression in this State in the setting here presented and it is apparent on the face of the factual recital that the question is close. We would be less objective than our duty requires not to acknowledge the difficulty of the problem. The defendant operates on a fixed line. The obligations of its service to the public call for rapid and continuous transportation of large numbers of passengers on its trolley line, particularly during rush hours. But its experiences during the period preceding this accident projected it backward in time from a modern rapid-transit electric trolley line to something akin to the ambuscade-conscious stagecoach of the early West. Our concern is with the impact of this untoward episode in the life of this utility on its duty to its passengers.

The general rule is that a common carrier of passengers must use a high degree of care to protect them from danger that foresight can anticipate.' Rourke v. Hershock, 3 N.J. 422, 426, 70 A.2d 489, 491 (1950); Miller v. Public Service Coordinated Transport, 7 N.J. 185, 187, 81 A.2d 148, 26 A.L.R.2d 1215 (1951). The very statement of the rule exposes the fallacy in defendant's contention that the evidence as to prior similar incidents is not competent or material. Passing the point that the answers to the interrogatories were introduced without objection by defendant it is at once apparent that this data was material as going to the vital question of defendant's reasonable 'foresight' of such a hazard as plaintiff was exposed to on February 6, 1953. Defendant's contention that the rule permitting introduction of evidence of prior accidents to show notice to the defendant is confined to cases involving permanently dangerous conditions, as of disrepair of premises, does not accord with the authorities. Exton v. Central R.R. Co., 62 N.J.L. 7, 42 A. 486, 56 L.R.A. 508 (Sup.Ct.1898), affirmed 63 N.J.L. 356, 46 A. 1099, 56 L.R.A. 508 (E. & A.1899) (liability of carrier for injury to passenger on passageway caused by scuffling of hackmen). It was there said, as to evidence of prior accidents arising from rowdyism of hackmen (62 N.J.L. at page 11, 42 A. at page 488):

'This evidence was properly admitted to the jury--first, as tending to show the dangers connected with the use of this way to the baggageroom, of which Mrs. Exton could have no previous notice or knowledge, and of the character of the danger, it being such as that its existence could not be previously observed by any passenger in the use of the walk; and, secondly, as tending to show that the servants of the defendant in charge of the station had knowledge of these occurrences and dangers on that walkway, or should have had knowledge of them in the exercise of reasonable care to guard its passengers against accidents and injury from situations of danger likely to arise while under its care. * * *'

In Kinsey v. Hudson & Manhattan R.R. Co., 130 N.J.L. 285, 288, 32 A.2d 497, 498 (Sup.Ct.1943), affirmed 131 N.J.L. 161, 35 A.2d 88 (E. & A.1944), involving liability of a carrier for injuries to a passenger due to assault by an intoxicated fellow passenger, the court said:

'* * * While the carrier is not an insurer of the passenger's safety, he is enjoined to shield him from those dangers which human care and foresight can reasonably anticipate and prevent, compatible with the nature and needs of the business. If the carrier knew, or had reasonable cause to know, of the likelihood of injury to the passenger, and the danger is preventable by the exercise of due care, so measured, he is answerable for the consequences of his nonconformance to that standard. * * *'

See also Skillen v. West Jersey & Seashore R.R. Co., 96 N.J.L. 492, 494, 115 A. 372 (E. & A.1921).

Defendant contends that its duty should not be held to extend to hazards originating in unlawful acts committed off its property. Here defendant makes its strongest showing and the argument reflects several aspects requiring inspection. We may lay to one side the matter of reasonable anticipation. Defendant had every reason to know that injuries of this kind were a likely concomitant of its operation in the vicinity of the Park Avenue station notwithstanding they resulted from the acts of boys positioned beyond its right of way. The challenging inquiry is: what could defendant reasonably have been required to do to meet the contingency which eventuated so that it may not justly be in a position to complain that it is thrown to the caprice of a jury or converted into an insurer? Two general areas of prevention are suggested: (a) equipment; (b) control or admonition by the motorman in charge.

In respect to equipment, defendant contends that it is entitled to exculpation because it is not shown to have departed from customary standards of construction and equipment germane to considerations of safety, citing Bobbink v. Erie R.R. Co., 75 N.J.L. 913, 69 A. 204 (E. & A.1908); Traphagen v. Erie R.R. Co., 73 N.J.L. 759, 64 A. 1072, 67 A. 753 (E. & A.1906); Byron v. Public Service Co-ordinated Transport, 122 N.J.L. 451, 5 A.2d 483 (Sup.Ct.1939); Williams v. New Jersey-New York Transit Co., 113 F.2d 649 (2 Cir., 1940). We are not called upon to decide in the present case whether the New Jersey...