Morris v. W. Jersey & S. R. Co.

• Decision Date: 14 June 1915
• Citation: 87 N.J.L. 579,94 A. 593
• Parties: MORRIS v. WEST JERSEY & S. R. CO.
• Court: New Jersey Supreme Court

94 A. 593

87 N.J.L. 579

MORRIS

v. WEST JERSEY & S. R. CO.

Court of Errors and Appeals of New Jersey.

June 14, 1915.

(Syllabus by the Court.)

Garrison, J., dissenting.

Appeal from Supreme Court.

Action by Bertha M. Morris against the West Jersey & Seashore Railroad Company. From judgment for defendant, plaintiff appeals. Affirmed.

John W. Wescott, Atty. Gen., for appellant. Bourgeois & Coulcomb, of Atlantic City, for appellee.

PARKER, J. The plaintiff, a married woman, was injured while riding, as she claimed, as a passenger on a train of the defendant company, and brought suit for damages alleged to have been caused by its neg- ligence. There was a verdict directed for the defendant.

The matter of negligence was plainly a jury question, as the injury was caused by a rear-end collision of a following train while plaintiff's train was at a standstill. The direction was upon the ground that plaintiff was riding by virtue of what was called a "free pass," which contained a stipulation that the person accepting and using it thereby assumes all risk of accident, etc. The trial judge directed a verdict for defendant on the authority of Kinney v. Central R. R. Co., 32 N. J. Law, 407, 90 Am. Dec. 675, affirmed by this court in 34 N. J. Law, 513, 3 Am. Rep. 265.

So far as appeared from the evidence actually received at the trial, the pass was a gratuity; and the case turns on the question whether the trial judge committed error in rejecting evidence which would, if received and believed by the jury, have established the status of plaintiff as a passenger for hire. If not, the direction was right.

It was claimed that plaintiff's husband was employed by an express company under a contract which apparently contained some stipulation for services to be rendered by the husband to the defendant railroad company. The court overruled a number of questions to him as to his contract of service, which need not be quoted here, because the whole theory of the plaintiff's status as a passenger was summed up in the offer of proof made by her counsel in the course of the testimony, and rejected by the court, which offer was as follows:

"This man says that he had a contract with the express company. The contract required him to work for the defendant in this case, and the defendant accepted his services under the terms of that contract. I am going to ask what that contract was again. I am going to say to your honor that I propose to prove what the terms of that contract were, that he should have so much money, cash, and two passes a month for his family, and that those passes were part of the...