Johnson v. Cent. R. Co. of N.J., s. 6, 7, 16.

• Citation: 166 A. 180
• Decision Date: 27 April 1933
• Docket Number: Nos. 6, 7, 16.,s. 6, 7, 16.
• Parties: JOHNSON et al. v. CENTRAL R. CO. OF NEW JERSEY. RULON v. SAME. FALKINBURG et al. v. SAME.
• Court: United States State Supreme Court (New Jersey)

166 A. 180

JOHNSON et al.

v. CENTRAL R. CO. OF NEW JERSEY.

RULON

v. SAME.

FALKINBURG et al.

v. SAME.

Nos. 6, 7, 16.

Court of Errors and Appeals of New Jersey.

April 27, 1933.

Appeal from Supreme Court.

Actions, tried together, by Nehemiah Johnson and others, Clifford Rulon, and Susie Falkinburg and others, respectively, against the Central Railroad Company of New Jersey. Judgments for plaintiffs, and defendant appeals.

Affirmed.

William A. Barkalow, of Freehold, and De Voe Tomlinson, of Newark, for appellant.

David A. Veeder and Howard Ewart, both of Toms River, for respondents.

WELLS, Judge.

These three suits were brought to recover the loss sustained by the plaintiffs as a result of two forest fires alleged to have been communicated from sparks thrown from one or more of the locomotives of the defendant.

The cases were tried together at the Ocean circuit, and resulted in verdicts for the plaintiffs. From the judgments entered thereon, the present appeals are taken.

There was no motion for nonsuits, and no motion for directions of verdicts at the close of the plaintiffs' case, so that there are no questions of fact involved.

There are fifteen grounds of appeal, but only eight are relied on.

These are grouped as follows:

(1) There was error in the charge of the court (grounds of appeal 13, 14, and 15).

(2) The trial court committed error in the admission of certain evidence (grounds of appeal 3, 4, 5, 6, and 9).

In the grounds of appeal (13, 14, and 15), dealing with the charge of the court, certain excerpts are taken from the court's charge, from which it is argued by appellant that the trial court erroneously told the jury that it was the duty of the defendant to employ the most approved safeguards, to prevent the communication of fire from the engines to adjacent property, and to install in its locomotives a spark arrester of the most approved type. Appellant says that the duty of the defendant in this regard was simply to install and maintain its engines in good condition, and equip them with a spark arrester of an approved type or design and which is in common use, and that the effect of the erroneous instructions to the jury was to cast upon the defendant a greater burden than the law permits, and that this was prejudicial error.

In a lengthy charge covering fifteen printed pages in the state of the case, the court said much about safeguards, spark arresters, and the duty of the defendant railroad in regard thereto, and yet at the conclusion of the court's charge the only exception taken by the defendant on this point was, "We also respectfully take exception to your Honor's charge relative to most approved safeguard, what your Honor said on that subject."

From a technical standpoint, we need not consider the merits of the grounds of appeal relative to the charge of the court at all.

The exception is futile, as not pointing out the alleged error intended to be reviewed.

This court has repeatedly held that such an exception is without efficacy. Griffin v. James Butler Grocery Co., 108 N. J. Law, 92, 156 A. 636; Doran v. Asbury Park, 91 N. J. Law, 651, 104 A. 130; Thibodeau v. Hamley, 95 N. J. Law, 180, 112 A. 320; Goldfarb v. Phillipsburg Transit Co., 103 N. J. Law, 690, 137 A. 593; McKenna v. Reade, 105 N. J. Law, 408, 144 A. 812.

But, apart from this, a reading of the whole charge will disclose that the defendant in its exceptions to the charge of the court has broken up the continuity of thought of the trial court by separating the parts excepted to from the surrounding qualifying matter; and that, taken as a whole, the court properly instructed the jury as to the defendant's duty with regard to the installation and maintenance of safeguards and screens or covers in its engines as required by section 56 of the General Railroad Law of 1903, as amended by P. L. 1921, p. 786 (Comp. St. Supp. § 170—56), as construed by this court in Goodman v. Lehigh Valley R. R. Co., 78 N. J. Law, 317, 74 A. 519, and the decisions of the Supreme Court. Hoff v. W. J. R. R. Co., 45 N. J. Law, 201; Vallaster v. Atlantic City R. Co., 72 N. J. Law, 334, 62 A. 993.

The trial court expressly stated that the defendant would be justified in using an approved spark arrester under evidence showing it to have been in general use and that it was approved, pointing out that opinions would differ as to whether one type of spark arrester was better than another.

This court in Larsen v. Raritan Valley Farms, Inc., 109 N. J. Law, 363, 162 A. page 737, held that, when the court's charge, considered as a whole, presents the law fairly and clearly to the jury (as was done in the instant ease), there is no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous.

The fourth, fifth and sixth grounds of appeal were argued together and bring up questions asked of the witness Thomburg, the fire warden.

The first question (ground of appeal 4) is: "But you had prior communication with the officials of the Central Railroad Company in regard to fires and so forth?" This question was not objected to, and was answered in the affirmative.

The next question (ground of appeal 5) is: "What did you communicate to Mr. Davis on this occasion?"

This was objected to as irrelevant, incompetent, and immaterial. The answer was: "I asked him to have Mr. Phillips place a fire patrol along the Central Railroad."

The witness was then asked: "What did you tell him as to conditions then existing, if anything?" (Ground of appeal 6.)

This was objected to on the same ground, namely, that it was irrelevant, incompetent, and immaterial.

The answer was: "I told him it was very dry, with high winds, and very dangerous for fires, and we would like to have protection along the railroad from fires being caused by the Central Railroad, if any."

Counsel for appellant says that plaintiffs' counsel sought to sustain the legal propriety of these questions upon the ground that the foregoing facts cast an additional burden upon the defendant to patrol along its railroad, and that the court's action in permitting these questions was error and contrary to the decision of this court in West Jersey R. R. Co. v. Abbott, 60 N. J. Law, 150, 37 A. 1104, 1105, which held: "When the legislature enacts regulations in respect to any precaution to be taken in the use of a dangerous instrumentality by those whom it has authorized to use it, those regulations define and limit the measure of duty in respect to that particular sort of precaution. * * * In the case before us the legislature has prescribed what duty a railroad company must perform in respect to the escape of sparks from the smokestack of its engines. The prescribed duty does not require the company at any time to absolutely prevent the escape of such sparks, but only to take and use all practicable means to that end. Proof that they have taken and used such means furnishes a defense in that respect."

We have no quarrel with this decision. In the instant case there was an allegation in each complaint that defendant negligently operated the fire boxes (as well as spark...