Miller v. Public Service Co-ordinated Transport, No. A--120

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: BURLING
• Citation: 81 A.2d 148,26 A.L.R.2d 1215,7 N.J. 185
• Decision Date: 21 May 1951
• Docket Number: No. A--120
• Parties: , 26 A.L.R.2d 1215 MILLER et al. v. PUBLIC SERVICE COORDINATED TRANSPORT.

Page 185

7 N.J. 185 81 A.2d 148, 26 A.L.R.2d 1215 MILLER et al.
v.
PUBLIC SERVICE COORDINATED TRANSPORT. No. A--120. Supreme Court of New Jersey. Argued April 23, 1951.
Decided May 21, 1951.

Page 186

[81 A.2d 149] Carl T. Freggens, Newark, argued the cause for the appellant. Louis F. Stein, Jr., Newark, of counsel.

Abraham I. Mayer, Newark, argued the cause for the respondent. Mayer & Mayer, Newark, attorneys.

The opinion of the court was delivered by

BURLING, J.

This is a civil action which sounded in tort and the gravamen of which was the alleged actionable negligence of the defendant. The plaintiff Dora Miller alleged she was a passenger upon a bus which was operated by the defendant as a common carrier in the City of Newark in this

Page 187

State. She alleged that the defendant failed to perform its duty in the operation of a crowded bus and the proximate result thereof was the injuries sustained by her.

The appeal is from a judgment of the Appellate Division of the Superior Court reversing a judgment of the Law Division of the Superior Court, Essex County, entered as a result of the granting of defendant's motion for dismissal made at the close of plaintiff's case. The right of appeal to this court arose from a dissent in the Appellate Division of the Superior Court. N.J. Constitution 1947, art. VI, sec. V, par. 1(b).

The question involved in this appeal is whether the evidence and reasonable inferences to be drawn therefrom spell a Prima facie case of negligence on the part of the defendant which proximately caused the injuries sustained by the plaintiff. The principles of law involved in the determination of this matter are not novel.

The first of these principles is that a motion for the involuntary dismissal of an action under our present practice, Rule 3:41--2, is comparable to a motion for an involuntary nonsuit under our former practice, in that it admits the truth of the plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom which is favorable to the plaintiff but denies its sufficiency in law. The second principle is that a common carrier of passengers is under a duty to exercise a high degree of care in transportation of its passengers. Although it is recognized that the overcrowding of the transporting vehicle is not negligence Per se, the carrier's[81 A.2d 150] duty is to exercise a degree of care for the passengers' safety which is commensurate with the risk of danger likely to arise from crowding which reasonable foresight should anticipate.

The duty has been defined in Hansen v. North Jersey Street Ry. Co., 64 N.J.L. 686, at pages 696, 697, 46 A. 718 at page 721, (E. & A. 1900) as follows: 'Common carriers habitually transport persons of every degree of bodily health and vigor, including the young and the aged and infirm

Page 188

of both sexes. That exit from a crowded car is likely to be attended, in the case of any passenger,...