Kelson v. Pub. Serv. R. Co.

• Decision Date: 14 June 1920
• Citation: 110 A. 919
• Parties: KELSON v. PUBLIC SERVICE R. CO.
• Court: New Jersey Supreme Court

110 A. 919

KELSON

v. PUBLIC SERVICE R. CO.

Court of Errors and Appeals of New Jersey.

June 14, 1920.

(Syllabus by the Court.)

Kalisch, Taylor, and Ackerson, JJ., dissenting.

Appeal from Circuit Court, Union County.

Action by Henry Kelson against the Public Service Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Lefferts S. Hoffman, Leonard J. Tynan, and Edwin C. Caffrey, all of Newark, for appellant

Samuel Koestler, of Elizabeth, for respondent.

BLACK, J. The undisputed facts in this case are: The plaintiff boarded a car of the defendant company at Chrome, N. J., intending to go to Railway. He went to Chrome Junction and was there given a transfer to Woodbridge Junction. He thereupon transferred to another car and proceeded toward Woodbridge Junction. He was carried by Woodbridge Junction. The conductor then gave him a ticket to enable him and two other persons to ride back to Wood-bridge Junction. The conductor let the plaintiff off at Poor Farm Road, telling him to take another car back to Woodbridge Junction, on his way to Rahway. Poor Farm Road is a regular trolley station. There is a dirt road leading from either side of the track, at Poor Farm Road. There is also a little building, just a station for the waiting room; "a small shanty, that is all."

It was about 12:45 p. m. on November 19, 1918. It was rainy and dark. The testimony is that one or more cars passed while the plaintiff was waiting at Poor Farm Road station going toward Woodbridge Junction, but they could not be prevailed upon to stop. After waiting 25 minutes or a half an hour, the plaintiff started to walk back to Wood-bridge Junction, a distance of about two miles, on the private right of way of the defendant company, which is fenced in and has cattle guards at the crossings. He stumbled and fell, sustaining a hernia. The plaintiff then continued his walk to Woodbridge Junction. At Woodbridge Junction, he got the last car that night to Rahway. The trial resulted in a verdict for the plaintiff.

The only ground of appeal argued by the appellant is the refusal of the trial court to charge the jury:

"If the plaintiff was put off at Poor Farm Road and the plaintiff left this place, the defendant is not liable for any injuries received subsequent to his leaving Poor Farm Road, and on the private right of way."

This request is criticized by the plaintiff, as inaccurate. As an abstract rule of law it is too broad, it is said; but so it was said in the case of State v. Jones, 71 N. J. Law, 546, 60 Atl. 396, where a similar criticism was made to a charge to the jury, but there it was said it was the law of the case, as applied to the facts, and, as the law of the case, it was not error in the charge.

When the plaintiff left the station at the Poor Farm Road, his status as a passenger of the defendant company was terminated by the voluntary act of the plaintiff. The causal connection between the defendant's act and its duty to the plaintiff as its passenger was broken. The trial judge should have so instructed the jury. The language of the request, which was refused, when applied to the facts before the jury, was a correct expression of the defendant's legal" duty. It is the law of the case. It should have been charged. It was error not to so charge. This case in some of its legal aspects is not unlike the case of Robertson v. West Jersey, etc., R. Co., 79 N. J. Law, 186,

74 Atl. 300, in the Supreme Court. It was there said the duty of a carrier to exercise due care for the safety of a passenger continues only while the relation of passenger and carrier exists. The defendant company did not owe to the plaintiff a duty of making the private...