Hess v. Pub. Serv. Ry. Co.

• Decision Date: 24 April 1913
• Citation: 86 A. 951,84 N.J.L. 329
• Parties: HESS v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

86 A. 951

84 N.J.L. 329

HESS

v. PUBLIC SERVICE RY. CO.

Court of Errors and Appeals of New Jersey.

April 24, 1913.

(Syllabus by the Court.)

Error to Supreme Court.

Action by John Hess against the Public Service Railway Company. From a judgment of the Supreme Court affirming the judgment, sustaining a demurrer to the declaration, plaintiff brings error. Reversed and remanded.

Harry Kalisch, of Newark, for plaintiff in error.

Leonard J. Tynan, of Newark, for defendant in error.

PARKER, J. The declaration followed so closely the language of the declaration in the Supreme Court case of Kennedy v. North Jersey Street Railway Co., 72 N. J Law, 19, 60 Atl. 40, that the judge of the circuit court felt himself controlled by that decision, and the Supreme Court on writ of error concurred in that result. As in the Kennedy Case, the negligent act counted on was the sudden starting—or, more accurately, speeding up—of a slowly moving street car as an intending passenger was in the act of boarding it, and the critical point in the declaration was the presence or absence of legally sufficient allegations of fact which if true would give plaintiff a status as an intending passenger and thereby raise a duty of care on the part of the defendant. To do this it was necessary to plead facts from which it would appear that plaintiff was invited, in the legal sense, to board the car. In the Kennedy Case the Supreme Court held that the word "invited," in the declaration, was used in its legal sense and stamped the allegation as a conclusion of law rather than a statement of fact, and consequently vitiated the pleading. In the case at bar the plaintiff's attorney has endeavored to avoid the vice thus pointed out, by substituting the word "requested" for "invited," and stating that plaintiff had notified the servants of defendant operating the car to stop, and that the car was slowed, etc., for the purpose of permitting the plaintiff to board it. The exact language follows: "* * * That whereas on the day and year aforesaid the said car came nearly to a standstill at the instance and request of the said plaintiff, upon notice given by the said plaintiff to the said defendant, by its servants operating said car on said Broad street, and the said defendant by its servants then and there requested him the said plaintiff to board and enter said car to become a passenger in said car to be safely and securely carried by the said defendant, in the said car, upon and along said Broad street, for hire and reward to be paid by the said plaintiff to the said defendant in that behalf; and the said plaintiff avers that while he, the said plaintiff, was then and there lawfully attempting to board and enter said car pursuant to said request of the said defendant by its servants, the said defendant having then and there slackened and slowed down the speed of said car almost to a standstill for the purpose of permitting the said plaintiff to board and enter said car safely, the said defendant by its servants then and there carelessly, negligently, and improperly suddenly accelerated the speed of said car, without then and there giving any notice or warning to the said plaintiff, thereby dragging and throwing the plaintiff violently to the ground and then and there seriously and painfully injuring him."

The Kennedy Case was followed by the Supreme Court in Kubinak v. Lehigh Valley R. R. Co., 79 N. J. Law, 438, 75 Atl. 443, but does not appear to have been considered in this court. Accepting as correct for present purposes the ruling that the word "invited," in that declaration, without more, set up only a conclusion of law (and this is supported by outside authority, 31 Cyc. 61; Brown v. Coal Co., 124 Ky. 324, 99 S. W....