Kennedy v. N. Jersey St. Ry. Co.

• Decision Date: 27 February 1905
• Citation: 72 N.J.L. 19,60 A. 40
• Parties: KENNEDY v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

60 A. 40

72 N.J.L. 19

KENNEDY

v. NORTH JERSEY ST. RY. CO.

Supreme Court of New Jersey.

Feb. 27, 1905.

(Syllabus by the Court.)

Action by Frederick F. Kennedy against the North Jersey Street Railway Company. Demurrer to declaration sustained.

Argued November term, 1904, before GUMMERE, C. J., and GARRISON and GARRETSON, JJ.

Samuel Kalisch, for plaintiff. Hobart Tuttle, for defendant.

GARRISON, J. The declaration to which a demurrer has been filed alleges that the defendant was operating its car upon one of the public streets of Newark, "and that said car came nearly to a standstill at the instance and request of the plaintiff, who then and there, at the special instance and request of the said defendant, was then and there invited to become a passenger in said car, to be safely and securely carried by the said defendant in the said car; * * * and that while he, the said plaintiff, was then and there lawfully attempting to board and enter said car in pursuance to said invitation while the same was nearly at a standstill, the said defendant, by its servants, then and there carelessly, negligently, and improperly suddenly accelerated the speed of said car without then and there giving any notice or warning to the said plaintiff, thereby throwing the said plaintiff violently to the ground."

The essence of this charge is invitation, in its legal sense; hence, under the familiar rule that a demurrer admits only such facts as are properly pleaded, the case turns upon the question whether the invitation set up by the declaration is a statement of a fact properly pleaded by the plaintiff, or whether it is a statement of the plaintiff's conclusion from the other facts pleaded or from undisclosed facts. The word "invitation" has both a colloquial and a legal meaning; the former importing a fact of well-known signification, the latter a conclusion of law, to which definite rights and liabilities attach. Upon an issue of law it should be assumed that words are used in their legal sense, not only because in legal documents charging legal liabilities words should be given their legal signification, but also because in the present case it is next to impossible to believe that the pleader seriously intended to aver that he was, in the colloquial sense of the word, "solicited by any written, oral, or signal message" to board the moving car. The fair meaning to be given to the declaration is that from the slowing down of the car the plaintiff assumed that he had...