Hoberg v. Collins, Lavery & Co.

• Decision Date: 14 November 1910
• Citation: 78 A. 166,80 N.J.L. 425
• Parties: HOBERG v. COLLINS, LAVERY & CO.
• Court: New Jersey Supreme Court

78 A. 166

80 N.J.L. 425

HOBERG

v. COLLINS, LAVERY & CO.

Court of Errors and Appeals of New Jersey.

Nov. 14, 1910.

Syllabus by the Court.

Error to Supreme Court.

Action by Edward Manning Hoberg, by his next friend, Henry Hoberg against Collins, Lavery & Co. Judgment of nonsuit, and plaintiff brings error. Affirmed.

McDermott & Enright, for plaintiff in error.

William Brinkerhoff and Brinkerhoff & Fielder, for defendant in error.

VOORHEES, J. While the plaintiff, a boy of about nine years of age, was playing with a companion in the street of Jersey City on which there were two street car tracks, one of the defendant's large two-horse trucks passed by empty en route to the stable. The wagon, built to carry boxes, and open except for high racks at the sides, was in charge of a driver employed by the defendant The two boys ran after the wagon, which was being driven on the south-bound car track, and jumped upon it to "steal a ride." They stood upon the spring, or iron rod, running across the rear of the wagon underneath the tailboard, and supported themselves by holding fast to the tailboard with their hands; their heads and shoulders extending above the top of the tailboard. The plaintiff was looking toward the driver who was sitting in his seat at the front of the wagon, perhaps 12 or 15 feet away from the boys. Shortly after the boys had caught on the wagon, and while the horses were going on a walk, the driver turned around, and, seeing them, struck back at them once with his whip without any warning. It struck the plaintiff on his shoulder, so that he felt the hurt. The plaintiff in jumping or attempting to jump off fell from the spring in front of or near to a street car, passing on the north-bound track in the opposite direction, which ran over and crushed his foot, necessitating amputation. The plaintiff said: "I was scared of the whip, and I fell off. I did not jump. I couldn't jump. He was too fast with the whip. I couldn't help falling." It was in evidence that "the tail of the truck with Hoberg on it was just passing the front platform of the car when he jumped. He jumped right into the car. He ran right against the car." Still another witness testified: "I seen the driver strike at a boy with a whip, and I seen him jump off the truck and run towards the car and then the car hit him." At the close of the plaintiff's case, a motion to nonsuit was made and granted, and the judgment entered upon it forms the subject of review.

It is admitted that the plaintiff was a trespasser, but he contends that that fact under the proofs does not disentitle him to a recovery, and argues that support for the action is found in Powell v. Erie R. R. Co., 70 N. J. Law, 200. 58 Atl. 930, in the following expression of the learned justice who wrote the opinion in that case, viz.: "Excessive or improper force applied in the effort to eject him would, of course, be actionable." The plaintiff also seeks to distinguish that case from the present because there the trespasser was intercepted in an attempt to board a moving train, an act made by statute a misdemeanor, as well as negligent, also because here there was an actual assault, but not in the Powell Case. There the plaintiff was an able-bodied adult; here a child of nine years.

The plaintiff insists that it was due to him to refrain from willfully injurious acts and from such threats of violence as would in the necessary attempt to avoid it result in the plaintiff's losing his presence of mind and self-control. For the purpose of an examination of this case, it may be considered that the driver of the wagon, being in charge of the defendant's property, in the attempted protection of it, by ousting trespassers from it, was acting within the scope of his employment, and thereby rendered his employer liable for his acts. The general doctrine, so often enunciated, that to a trespasser no duty is owed, save to refrain from a willful and intentional injury, usually arises in cases having to do with acts of trespass upon land; yet there is no reason why the same principles should not obtain with reference to such personal property as may be the subject of a trespass committed upon it. Indeed, it has been indirectly applied to that class of property in Friedman v. Snare & Triest Co., 71 N. J. Law, 605, 61 Atl. 401, 70 L. R. A. 147, 108 Am. St. Rep. 764, the personal property there consisting of iron beams which had been piled in the public highway. In recent times it has been applied where persons have wrongfully entered upon railway trains, and in these cases, the consideration of the status of a trespasser has frequently arisen, and they furnish examples of many recoveries by trespassers that have been sustained. These cases are not all in harmony, but it would seem that they all hold to the general principle above stated varying greatly, however, in its application, and thus are productive of divergent conclusions. As against a trespasser, a malicious or intentional injury is actionable, while a merely negligent act will not form the basis of recovery, because the duty to observe reasonable care, is not owing to the trespasser. To force a man from a rapidly moving railway train, it is well known, is to subject him to a hazard almost certain to result in loss of life or severe bodily harm. Such an act, therefore, if the conditions are known, is malicious and wrongful. To remove one from a railway car at rest is not an inherently dangerous act, nor one which commonly does, or is likely to, eventuate in harm, so that, if in fact an injury should result, it could be said to be wanton or willful and intentional. The distinction has been quite fully set forth in Bolin v. Chicago, etc., Ry. Co., 108 Wis. 333, 84 N. W. 440, 81 Am. St. Rep. 911, where the court says in part: "It is not sufficient to indicate an intentional injury that the party causing it had reasonable ground to expect that such a result was within reasonable probabilities, otherwise a violation of the duty to exercise ordinary care would of itself be sufficient to indicate...