McCoy v. Millville Traction Co.

• Decision Date: 18 November 1912
• Citation: 85 A. 358,83 N.J.L. 508
• Parties: MCCOY v. MILLVILLE TRACTION CO.
• Court: New Jersey Supreme Court

85 A. 358

83 N.J.L. 508

MCCOY

v. MILLVILLE TRACTION CO.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1912.

(Syllabus by the Court.)

Error to Supreme Court

Action by James McCoy, administrator of the estate of Thomas O. McCoy, against the Millville Traction Company. Judgment for defendant, and plaintiff brings error. Reversed, and venire de novo awarded.

Wescott & Wescott, of Camden, for plaintiff in error.

Walter H. Bacon, of Bridgeton, for defendant in error.

TRENCHARD, J. The plaintiff's intestate, Thomas O. McCoy, boarded defendant's trolley car at Millville, about 7 o'clock Christmas night, 1908. He was so drunk that he had to be helped aboard of the car. He was bound for Vineland, several miles away, where he lived. At first he sat on a rear seat, and then went out on the rear platform where he stood "with his back to the dash, and his arm on the controller." Meanwhile the car had proceeded about one mile out into the open country over the single-track road which runs in a northerly direction on the east side of a public highway. A dispute then arose between McCoy and the conductor over the payment of fare, and later he was put off the car. He was put off on the left-hand or west side of the car, at a point about 20 yards distant from a "shelter shed" maintained by the defendant, and which stood on the east side of and abutting the track. At the time the ground was covered by snow. According to the testimony, there was a bank of snow about two feet high on both sides of the track, where it had been thrown by a snowplow. Shortly after he was put off, another car of the defendant company, running in the same direction as that in which McCoy had been riding, ran over and killed him, and this suit was brought by his administrator to recover damages for his death. The trial at the Cumberland circuit resulted in a verdict for the defendant, and this writ of error brings up for review the judgment entered thereon.

We are of opinion that the judgment must be reversed because of error, prejudicial to the plaintiff, in the charge of the court. The declaration charged negligence in two aspects: (1) In ejecting the plaintiff's intestate at a dangerous time and place while in a state of "extreme intoxication and unable to care for himself"; and (2) in the careless operation of the second car.

In his charge to the jury the learned trial judge said: "The fair inference from the proof is that he (McCoy) was ejected because he did not pay his fare." Continuing, he said: "As this case stands the company had a legal right to put Mr. McCoy off the car. In doing what they did they were exercising their plain, clear legal right, and under the proof they discharged him in a place of safety. They discharged him where they usually discharged passengers, on the public highway, where he was entirely safe. So that you must, under the charge of the court, entirely eliminate from consideration any act of the company up to and including the time he was discharged from the car upon the public highway. The only question, therefore, under this declaration, that you are permitted to consider is: Was the company negligent in running him down?"

Now, before passing to a consideration of that part of the charge clearly necessitating a new trial, it may serve a useful purpose to point out the doubtful propriety of holding as a matter of law that the company had a clear legal right to eject McCoy in view of the meager proof. The judge so held because he said: "The fair inference from the proof is that he was ejected because he did not pay his fare." No doubt such was a fair inference, but the question confronting the judge was this: Was it the only legitimate inference? The only witness who testified upon this topic said: "The conductor went out after his fare, and when he went I heard him say to him—I didn't hear what Tommy (McCoy) said—but he says, 'You will have to pay your fare or get off.' Then he shut the door, and I did not hear any more." How soon thereafter McCoy was put off does not appear, but it is a reasonable inference from the testimony that some considerable time intervened. If from this meager testimony an inference was to be drawn that McCoy had not in fact paid his fare, and that he was ejected for that reason, we incline to think it must be drawn by the jury, and not by the judge, for the reason that it was not...