Lerner v. Pub. Serv. Ry. Co.

• Decision Date: 04 September 1912
• Citation: 84 A. 618,83 N.J.L. 64
• Parties: LERNER v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

84 A. 618

83 N.J.L. 64

LERNER

v. PUBLIC SERVICE RY. CO.

Supreme Court of New Jersey.

Sept. 4, 1912.

(Syllabus by the Court.)

Appeal from District Court of Newark.

Action by Joseph Lerner against the Public Service Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued February term, 1912, before TRENCHARD, PARKER, and MINTURN, JJ.

Lefferts S. Hoffman and Leonard J. Tynan, both of Newark, for appellant.

Philip J. Schotland, of Newark, for appellee.

TRENCHARD, J. The plaintiff below sued to recover for injuries sustained while attempting to enter a street car of the defendant company. The action was tried in the district court with a jury, and the defendant appeals from the judgment entered upon the verdict for the plaintiff.

At the trial it appeared from the evidence produced by both sides that the plaintiff, an able-bodied man, attempted to board the car against the will of the conductor, but that he got no farther than the step, from which position he fell to the ground and was injured by the fall. The proof upon the part of the plaintiff tended to show that the car had stopped to take on passengers, and that while the plaintiff was on the step, and was about to get on the platform, the conductor told him he could not get on, pushed him back, shut the gate in his face, rang the bell to go ahead, and "pushed the plaintiff with his fingers." On the part of the defendant the proof, on the contrary, tended to show that the car was crowded with passengers, and that the "car full" sign was displayed; that the car stopped, not to take on more passengers, but to discharge passengers; that, after the car started, and after the conductor had closed the gate, the plaintiff "put his foot upon the bottom step and hung on to the gate"; that the plaintiff was then told by the conductor that he "had better get off and that he could not get in"; and that the conductor did nothing further to interfere with the plaintiff.

While the testimony is conflicting upon the question of the speed of the car, nevertheless it was clearly open to the jury to find that, from the time the plaintiff attempted to board the car until he fell, it was moving slowly.

In his charge to the jury the judge said that "the plaintiff was a trespasser on the car," and therefore, in dealing with the question about to be considered, that must be regarded as the law of the case. The learned trial judge then further charged as follows: "Whether or not the conductor did eject this man from the car while the car was in motion, whether he did something to force this man off this step and loosened his grasp on the gate so that the man fell off while the car was in motion, is for you to say. If he did, I charge you he is entitled to damages."

We are of opinion that the contention of the defendant that such instruction was erroneous, and requires a reversal of this judgment, must prevail.

While, as against a trespasser, a malicious or intentional injury is actionable, a merely...