Hoff v. Pub. Serv. Ry. Co.

• Decision Date: 04 March 1918
• Docket Number: No. 74.,74.
• Citation: 91 N.J.Law 641,103 A. 209
• Parties: HOFF v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

103 A. 209

91 N.J.Law 641

HOFF

v. PUBLIC SERVICE RY. CO.

No. 74.

Court of Errors and Appeals of New. Jersey.

March 4, 1918.

(Syllabus by the Court.)

After their entrance no offensive language was used on the car. She made no appeal for protection to the officers or to the conductor, and the assault upon her at the door was perpetrated in a moment, and before the conductor or police could intervene. Held, that there was no testimony in the case from which an inference could be drawn that the defendant had failed to use due care for the protection of the plaintiff, and that in the absence of such proof the defendant was entitled to a direction in its favor.

(Additional Syllabus by Editorial Staff.)

The Chancellor and Garrison, Parker, and White, JJ., dissenting.

Appeal from Supreme Court.

Action by Helen Hoff against the Public Service Railway Company. From a judgment of the Supreme Court (101 Atl. 404), affirming a judgment for plaintiff, defendant appeals. Reversed, with a venire de novo.

Lefferts S. Hoffmann and George H. Blake, both of Newark, for appellant. Alexander Simpson, of Jersey City, for appellee.

MINTURN, J. The complaint alleges that, while the plaintiff was a passenger upon defendant's street car, in Bayonne, she was assaulted by a passenger because of the failure of the defendant to use reasonable care to protect her, and while she was exercising due care upon her part. The testimony disclosed that she was a married woman; that she boarded a car at 11:20 o'clock at night, upon which were several men passengers and the conductor; that one of the men, who was seated about two feet away from the conductor, remarked to her as she passed, "Ah! look who's coming!" or "Ah! look who's here!" This remark apparently disconcerted her, so that she forgot to place her fare in the box at the door, until she saw the conductor look and smile at her, when she arose and, walking back, paid her fare. While doing so, she heard some unintelligible remark from the man who addressed her upon her entrance. She seated herself about three feet from the front of the car; the men were near the rear door. Shortly afterwards two policemen, in uniform, entered the car and seated themselves about opposite her. The exact time of their entrance the plaintiff was not clear about, but she admitted it was not very long after she boarded the car. After their entrance the plaintiff heard no further remarks from any of the men. In her own language, prior to the policemen's entrance these men, "were saying to themselves and hollering up to me." After the entrance of the policemen no further remarks were passed by any one until the car reached Sixteenth street, which was the plaintiff's destination.

In attempting to pass the men on her way out by the rear door, one of them, known in the testimony as Mr. Whitman, said to her, "Hey, chicken; take us along!" She had then passed the author of this remark, but upon hearing the utterance she turned around and said to him: "You have insulted me, since I got on this car. If you insult me again, I will smack your face." And he said, "Will you?" and he got up and punched her once on her face and again on her breast, which blows eventuated in the damage which presents the basis for this suit. The jury found in her favor, and the Supreme Court affirmed the judgment, from which determination this appeal is taken.

Her testimony is that, when Whitman struck her, every man in the car rose to her assistance, including the policemen, who took him into custody, and removed him from the car to the police station. During the entire situation after the entrance of the police, she made no complaint or protest to the conductor, and made none to the police omcers, and they were called upon to intervene only when she was about to leave the car, and then not because she invoked their aid, or protection, but because a breach of the peace had taken place in their presence. Her explanation for not appealing to the conductor was that, if she did so, "they would have made a row, and then the conductor would have a fight," and, when asked why she did not appeal to the police officers, said she "didn't want to make any trouble."

When asked why she did not leave the car by the front door, near which she sat, instead of walking down the length of the car and passing the objectionable passengers to reach the rear door, she said: "I couldn't help it. He said so much to me I had to do something." The two police officers testified that, when the blow was struck, the plaintiff stood with one foot on the floor of the rear vestibule, and the other on the floor of the car proper, and the conductor stood on the platform behind her;, that after they entered they heard no loud talk from any one on the car; that they had no reason to anticipate a breach of the peace; and that the affair, in the language of one of them, "happened in a moment."

Excepting the medical testimony this narration of facts presented the plaintiff's case. The defendant's witnesses presented no material variant facts, so that essentially the plaintiff's right of recovery was predicated upon the accepted truth of her own testimony and that of her witnesses. A motion for nonsuit and a motion to direct a verdict for the defendant, upon the ground that no negligence upon the part of the defendant had been shown, both of which motions were refused, present the basis of this appeal.

The rule is fundamental that the mere happening of an accident affords no legal ground for a claim for damages, unless the claim can be predicated upon that class of accidents, governed by the rule of res ipsa loquitur, which per se raises a presumption of negligence. Bahr v. Lombard Ayres Co., 53 N. J. Law, 233, 21 Atl. 190, 23 Atl. 167.

To invoke the rule of liability for negligence, which is predicated upon the omission to perform, or the performance negligently of some legal duty by the defendant, it must appear that the legal duty existed as sine qua non to the defendant's liability. Kingsley v. D., L. & W. R. R., 81 N. J. Law, 540, 80 Atl. 327, 35...