McPherson v. Hudson & M. R. Co.

• Decision Date: 09 December 1924
• Docket Number: No. 51.,51.
• Citation: 127 A. 23
• Court: New Jersey Supreme Court
• Parties: McPHERSON v. HUDSON & M. R. CO.

127 A. 23

McPHERSON

v. HUDSON & M. R. CO.^*

No. 51.

Supreme Court of New Jersey.

Dec. 9, 1924.

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Suit by Harriet I. McPherson against the Hudson & Manhattan Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued May term, 1924, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Collins & Corbin, of Jersey City (Edward A. Markley and Charles W. Broadhurst, both of Jersey City, of counsel), for appellant.

William C. Gebhardt & Son, of Clinton (W. Reading Gebhardt, of Clinton, of counsel), for respondent.

KATZENBACH, J. About 8 a. m. on June 15, 1920, the plaintiff respondent (hereinafter caled the plaintiff), desiring to be transported from Jersey City to downtown New York, went to the Summit Avenue station in Jersey City of the Hudson & Manhattan Railroad Company, the defendant appellant (hereafter referred to as the defendant). The plaintiff paid her fare and walked to the station platform. A train having as its destination what is termed downtown New York pulled into the station and stopped. The plaintiff went to the rear door of the third car of the train and found it closed. She thereupon went towards the center door of the same car, which was open. As she was entering the doorway, the door without warning closed upon her, pinning her between the door and the door jamb. She was injured. The car was of the usual type used on the railroad of the defendant. The doors open by air pressure. The air pressure for each door is controlled by a button. Buttons placed on the front platform of a car control the front door and the center door of the car. Buttons placed on the rear platform control the rear door and the center door of the car.

The plaintiff brought suit in the Hudson county circuit court to recover damages for her injury. The allegation of the defendant's negligence in the complaint was stated in the following words:

"That on the said 15th day of June, 1920, the said plaintiff became and was a passenger of said defendant, and was attempting to board or get upon one of its cars in the said city of Jersey City, when the said defendant, by its servants, negligently and carelessly and without warning closed the door, where said plaintiff was attempting to board or get upon said train, with great force and violence, and thus caught the said plaintiff between the said door and the said car with great force and violence, by reason whereof the said plaintiff was greatly bruised, wounded, and injured."

The only theory of negligence upon which a case can be submitted, is the one alleged in the complaint. Murphy v. Railway Co., 71 N. J. Law, 5, 58 A. 1918. This principle of law was observed by the trial judge in the present case in his charge to the jury. A judgment was recovered by the plaintiff. The defendant has appealed to this court. The grounds of appeal relied upon in the argument made for the appellant are the failure of the trial court to either nonsuit the plaintiff, or direct a verdict for the defendant. Both motions were made, refused, and txceptions duly taken.

The plaintiff was a passenger. The defendant was a common carrier. A carrier is bound to use a high degree of care to protect a passenger from danger that foresight can anticipate. Rivers v. Railroad Co., 83 N. J. Law, 513, 83 A. 883. At the close of the plaintiff's case the facts proven did not, in our opinion, warrant the granting of the motion to nonsuit. The presumption was that the center door was opened by an employee of the defendant. The open door was an invitation to the plaintiff to enter the car. When the door was suddenly closed, catching the plaintiff, the presumption was that it was closed by an employee of the defendant. From these facts there arose a presumption of negligence on the part of the defendant. It was such an accident that its mere happening charged the defendant with negligence, and placed upon it the burden of showing that the plaintiff's injury was not due to any fault on its part. The doctrine of res ipsa loquitur applied. The motion to nonsuit was, we think, properly denied.

The appellant next contends that the trial court should have directed the jury to find a verdict in favor of the defendant. This contention is based upon what counsel for the defendant terms is the undisputed evidence that the closing of the door by which the plaintiff was injured was not the act of a servant of the defendant, but an unanticipated act of a third person. The testimony relied on by the defendant to sustain this contention was given by two employees.

One, Eckley, was what is termed the fifth carman on...