Miller v. W. Jersey & S. R. Co.
| Decision Date | 20 June 1910 |
| Citation | 79 N.J.L. 499,76 A. 973 |
| Parties | MILLER v. WEST JERSEY & S. R. CO. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Supreme Court.
Action by Howard W. Miller against the West Jersey & Seashore Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.
See, also, 71 Atl. 1113.
John W. Wescott, for plaintiff in error.
Gaskill & Gaskill, for defendant in error.
GARRISON, J. A verdict recovered by the plaintiff under his original declaration was set aside on rule to show cause. Miller v. West Jersey & Seashore Railroad Company, 71 N. J. Law, 363, 59 Atl. 13. The material facts are stated in the opinion of the Supreme Court.
The original declaration had counted upon the negligence of defendant's servants. Before the retrial of the case the plaintiff amended his declaration by the addition of a count setting up the negligence of an agent of the Pennsylvania Railroad Company, and charging that it was "the duty of the defendant and its agents to protect the plaintiff and prevent the agents of the Pennsylvania Railroad Company from running one of its trucks over the plaintiff's foot." The averment of fact from which it was charged that this duty arose was that "defendant knew or had reasonable cause to know that the agents of the Pennsylvania Railroad Company were using, or were about to use, or were likely to use, the said platform where the plaintiff was standing by moving one or more of its freight trucks against, upon, and over the plaintiff's foot." This amendment was permitted to be made (Miller v. West Jersey & Seashore Railroad Company, 76 N. J. Law, 282, 70 Atl. 175), and at the trial upon the issues thus presented the plaintiff was nonsuited for failure to prove the facts alleged in his declaration. This ruling is now assigned as error.
The allegation of fact contained in the first count, viz., that the person whose negligence had injured the plaintiff was an agent of the defendant was not supported by testimony. Fry, the person referred to, was shown to have been a servant of the Pennsylvania Railroad Company; and there was no testimony to show that Fry was pro hac vice the agent of the defendant by reason of his being engaged at the time about its affairs, or in forwarding its business. The rules of law applicable to this latter situation do not therefore call for discussion. There was a total failure to prove the facts alleged in this count.
The material fact alleged in the second count, viz., that the defendant knew...
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Meyonberg v. Pennsylvania R. Co.
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