Kingsley v. Del., L. & W. R. Co.

• Decision Date: 19 June 1911
• Citation: 80 A. 327,81 N.J.L. 636
• Parties: KINGSLEY v. DELAWARE, L. & W. R. CO.
• Court: New Jersey Supreme Court

80 A. 327

81 N.J.L. 636

KINGSLEY

v. DELAWARE, L. & W. R. CO.

Court of Errors and Appeals of New Jersey.

June 19, 1911.

(Syllabus by the Court.)

Pitney, Ch., and Garrison, Bogert, Vroom, and Congdon, JJ., dissenting.

Error from Circuit Court, Hudson County.

Action by Frances Ann Kingsley against the Delaware, Lackawanna & Western Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

McDermott & Euright, for plaintiff in error.

M. M. Stallman, for defendant in error.

MINTURN, J. While attempting to leave the defendant's passenger coach in the terminal at Hoboken, the plaintiff, a lady over 60 years of age, misjudged the distance between the step of the car and the station platform, and, instead of placing her foot upon the platform, set it between the step and the platform, and falling sustained the injuries for which she claims damages in this suit.

With a party of three, consisting of her son, and Dr. Davidson and his wife, she boarded the train at Grove street station, a suburban station of Newark, and arrived at Hoboken at about 20 minutes before 8 o'clock in the evening. The car in which she rode was filled with passengers, some of whom preceded her in their exit, while others followed her. The members of her own party preceded her, and, while she was in the act of alighting, Dr. Davidson, who immediately preceded her, turned to assist her, and found her wedged between the station platform and the car step.

The action is based upon the legal theory alleged in the declaration that the defendant, in disregard of its duty, did not furnish a reasonably safe place in which to alight, and did not maintain its platform in such a manner as to be reasonably safe, and did not illuminate its platform in such a manner as to enable the plaintiff to safely alight. It will be observed, therefore, that the gravamen of the action is essentially the failure of proper construction of the defendant's transportation facilities, and a failure of maintenance in the supply of light.

The plaintiff's testimony is the only evidence in the case directed to the latter allegation, and she leaves 'it entirely clear that there was a sufficiency of light, or at least that the absence of sufficient light was not the superinducing cause of her accident. Thus the question was asked: "Q. Well, it was lit; it (the depot) was illuminated? A. Certainly. Yes, indeed. Q. And did you notice that the lights were in the middle of the platform? A. I did not notice any lights. There was no light that was thrown down particularly on the steps." It is a matter of conspicuous comment, in view of the meagerness and want of evidential completeness of this testimony, and of its vital importance to the plaintiff's case, that, if the defective condition of the lights in the terminal could to any extent account for this accident, not one of the plaintiff's party, or one of the many passengers who occupied the coach with her, was called upon to supplement and support the allegation.

The efforts of the learned counsel for the plaintiff were directed in the main to establishing the negligence of the defendant upon its alleged failure to construct its car steps and platform in a reasonably safe manner for the plaintiff to alight, and it was sought to establish that contention by two methods of proof: First, by the testimony of an engineer and a lawyer, who had made measurements of other cars in the terminals of other railroads; and, secondly, by photographs taken by a photographer shortly before the trial, at the defendant's terminal. The case is before us upon exceptions taken by counsel for the plaintiff to the exclusion of questions put to those witnesses, and in two instances to the exclusion of photographs, as well as generally to the direction of a nonsuit by the trial court at the termination of the plaintiff's case.

The plaintiff sought to prove by her witness Higgins, a civil engineer in the employ of the general railroad contractors, that there was a difference in measurement between the steps on cars operated by other companies and the steps of this particular car, with relation to the depot platform. Having proved, not only that there was a difference, but also that the cars of the various lines selected for comparison varied with one another, and that there was not in use by any company what may be called a standardization of step, or a generally accepted type of platform which could be utilized as a basis for comparison, he was asked: "What, in your opinion as a civil engineer, is the proper distance to space a landing platform from the gauge rail of a track, with a view to all conditions of railroad traffic as you have become familiar with them?" The trial court overruled this inquiry, and we think properly.

The net result of this witness' testimony was that he had never constructed a railroad platform or roadbeds, with a view to the accommodation of railroad traffic in a railroad terminal. His experience was limited to employment with railroad contractors, and a more or less extensive familiarity with opinions based upon writings and views on railroad construction, which he had gleaned from a book and some periodicals dealing with that subject. His was not the case of a competent, constructive railroad engineer, whose testimony in behalf of a theory of construction could be supported by constructive engineering work accomplished or directed by himself, the general principles underlying which had received the approval of recognized experts or text-writers of his craft, whose works he might invoke to support his theory. No such responsibility had been thrust upon him, and he was practically in the status of a civil engineer who had read some theories upon the subject of railroad construction in books and magazines, which, non constat, ever were put into actual practice. That the book itself would not be evidence, except for the purpose of contradicting the witness, is the settled law of this state. N. J. Zinc & Iron Co. v. Lehigh Zinc Co., 59 N. J. Law, 192, 35 Atl. 915. And, a fortiori, the interpretation put by a witness upon the language contained in the book, as the sole ground for his qualification as an expert, must be equally apparent. As was said by Mr. Justice Dixon, speaking for this court, in Laing v. United N. J. R. R. Co., 54 N. J. Law, 578, 25 Atl. 410 (33 Am. St. Rep. 682): "The worthlessness of such testimony is hardly stronger for its rejection than the practically limitless amount of it that might be produced." See, also, State v. Maioni, 78 N. J. Law, 339, 74 Atl. 526.

The witness had demonstrated by measurements taken by him in different railroad terminals that no two railroads agreed in the method or form of car step and platform construction, and that the entire method or form of construction apparently was a question of the adaptation of the platform of the stations to the various types of rolling stock which the companies found it necessary to accommodate in their terminals, in an enormous interlocking system of transcontinental travel and commerce. That, under such circumstances, there may be differences of construction must be apparent, even with the same railroad; but that difference of construction does not prove negligent construction must be equally clear, and therefore the testimony of a witness based entirely upon the former theory, and in the absence of a single factor evidencing negligence of construction, was properly rejected.

The photographer presented four photographs showing conditions at the terminal shortly before the trial. Two of these were excluded, and we think properly, because in reality they did not purport to show conditions, but included superadded elements intended to demonstrate for evidential purposes the theory of the plaintiff's case. The principle upon which photographs are admitted is entirely foreign to such a theory, for their utility as evidence is based upon the assumption that they present as nearly as can be done a fac simile representation of the place in question. Dyson v. N. Y. & N. E. R. R., 57 Conn. 24, 17 Atl. 137, 14 Am. St. Rep. 82; Goldsboro v. C. R. R., 60 N. J. Law, 49, 37 Atl. 433.

The general question of the defendant's liability under the circumstances is presented by the exception taken to the direction of a nonsuit. As has been observed, there was in the testimony proof conclusive to show that there was not in actual practice of railroad operation any method of construction of car steps or terminal platforms recognizing any standardization of type from which...