Johnson v. Pub. Serv. Ry. Co.

• Decision Date: 21 November 1912
• Parties: JOHNSON v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

85 A. 165

83 N.J.L. 647

JOHNSON

v. PUBLIC SERVICE RY. CO.

Court of Errors and Appeals of New Jersey.

Nov. 21, 1912.

Kalisch and Treacy, JJ., dissenting.

Error to Circuit Court, Hudson County.

Action by Martha Johnson against the Public Service Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Weller & Lichtenstein, of Hoboken, for plaintiff in error. Edwards & Smith, of Jersey City, for defendant in error.

WALKER, Ch. This writ of error brings up for review the propriety of a judgment of nonsuit granted by the Hudson circuit court The case was one in tort for an injury received by the plaintiff while walking across Courtland street, at its intersection with Central avenue, Jersey City, on the night of November 17, 1910. At the point in question a flagstone on the street crossing had become depressed, and the plaintiff caught her foot on the north rail of the defendant company's trolley track, and fell with such force that both her arms were broken. The street at the point in question had been in the same condition about a year and a half.

The nonsuit was ordered upon the ground that no negligence had been shown on the part of the defendant, and this, in turn, was rested upon the ground that the defendant company owed no duty to the traveling public for the condition of the highway at the locus in quo. The case of Fielders v. North Jersey St Ry. Co., 68 N. J. Law, 343, 53 Atl. 404, 54 Atl. 822, 59 L. R. A. 455, 96 Am. St. Rep. 552, is controlling. Counsel for both plaintiff and defendant seem to concede this. It is the only case but one, in our own courts, cited by counsel for the plaintiff in error, and is the only case cited by counsel for the defendant in error. In that case (Fielders v. North Jersey St. Ry. Co.) it was held that the liability of a railway company to maintain the pavement of a public street on which its tracks are laid does not result from the mere fact that the corporation has been vested with a franchise or license to use the street; that such liability, if it exists, must either rest upon some valid statute or ordinance imposing such duty or must arise out of contractual obligations. 68 N. J. Law, 346, 53 Atl. 404, 54 Atl. 822, 59 L. R. A. 455, 96 Am. St. Rep. 552.

The case at bar is barren of evidence showing any municipal ordinance requiring the defendant company to repair the street or maintain it at grade, nor have we been pointed to an act of the Legislature making such a requirement of the defendant company. The actionable negligence includes the notion that a legal duty has been...