McPherson v. Hudson & M. R. Co.

• Decision Date: 16 March 1925
• Docket Number: No. 55.,55.
• Citation: 128 A. 231
• Parties: McPHERSON v. HUDSON & M. R. CO.
• Court: New Jersey Supreme Court

128 A. 231

McPHERSON

v. HUDSON & M. R. CO.

No. 55.

Court of Errors and Appeals of New Jersey.

March 16, 1925.

Appeal from Supreme Court.

Action by Harriet I. McPherson against the Hudson & Manhattan Railroad Company. Judgment for plaintiff was affirmed by the Supreme Court (127 A. 23), and defendant appeals. Affirmed except in so far as opinion of Supreme Court is qualified.

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 Jersey City (W. Reading Gebhardt, of Jersey City, of counsel), for respondent.

PER CURIAM. In the opinion filed in the Supreme Court we find this:

"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."

In Hughes v. Atlantic City Railroad Company, 85 N. J. Law, 212, 89 A. 769, L. R. A. 1916A, 927, a charge of the trial judge that, "when an accident of this kind happens to some of the means of transportation, the law shifts the burden of proof from the plaintiff as to the explanation or showing the actual cause to the defendant, and imposes upon it the burden of making an explanation exculpating itself from negligence," was held to place too great a burden on the defendant, and the case was reversed. The opinion quotes with approval from Justice Dixon in Whalen v. Consolidated Traction Company, 61 N. J. Law, 606, 40 A. 645, 41 L. R. A. 836, 68 Am. St. Rep. 723; that, "when a passenger shows that he was injured through some defect in the appliances of the carrier, or through some act or omission of the carrier's servant, which might have been prevented by due care, then the jury have the right to infer negligence, unless the carrier proves that due care was exercised," and the opinion concludes that the inference "from the mere happening of the accident may be a legal inference in the sense that it is permitted by the law, but it is not a legal inference in the sense that it...