Mumma v. Easton & A. R. Co.

• Decision Date: 19 November 1906
• Citation: 65 A. 208,73 N.J.L. 653
• Parties: MUMMA v. EASTON & A. R. CO. et al.
• Court: New Jersey Supreme Court

65 A. 208

73 N.J.L. 653

MUMMA

v. EASTON & A. R. CO. et al.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1906.

(Syllabus by the Court.)

Error to Supreme Court

Action by Amos Mumma against the Easton & Amboy Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial awarded.

This was an action of tort brought in the Supreme Court by the plaintiff in error, plaintiff below, against the defendants in error, defendants below. The plaintiff, in his declaration, averred that on the 30th day of June, A. D. 1903, the defendants were the proprietors and operators of a certain railroad, with its equipment in the township of Bethlehem, Hunterdon county; that a certain public highway crossed the railroad by an overhead bridge, near the village of Bloomsbury; that on the day aforesaid he was a passenger, riding in a carriage drawn by one horse over and along the said highway, and, while crossing the said bridge and directly over the railroad tracks, the servants of the defendants carelessly, negligently, and unnecessarily blew the whistle of a locomotive engine which was directly under the said bridge, and caused a large amount of steam to be ejected under and around the horse, whereby the horse became frightened and overturned the carriage, and the plaintiff was violently thrown out upon the ground, by means whereof the plaintiff was bruised and injured, and became and is sick, sore, and lame, and so will continue to be, and has been, is, and will be hindered from attending to his business and deprived of the gains thereof, and forced to expend moneys in and about his care and cure, to the damage of the plaintiff, etc. The defendants pleaded that they were not guilty of the grievances charged. The issue joined between the parties was sent down to the Hunterdon circuit for trial before one of the justices and a jury. At the trial, the plaintiff offered evidence which, so far as need now be stated, tended to establish the case following: The plaintiff was about 57 years of age, and for some time before his accident had been employed by the International Harvester Company as a traveling demonstrator and a salesman. On June 30, 1903, he was at Abel's Hotel, at Bloomsbury, expecting to see John S. Pickel (whose place of abode was on the further side of the railroad) about the sale of a thresher or binder to Henry Housel, a resident in that neighborhood. After the midday dinner, or a little later, Housel, being in a hurry, undertook to convey the plaintiff in his carriage to Pickel's house or hotel. The horse was shod in the usual manner, and the carriage was an open, four-wheeled vehicle, with tires of metal, not rubber. In driving towards Pickel's abode they first crossed the railway tracks of the Central Railroad Company of New Jersey, and then approached the overhead highway bridge mentioned in the declaration. This bridge was an ordinary country bridge over a railway cut, was wide enough for two vehicles to pass thereon, was floored with planks which were about 20 feet above the rails, and was open at the sides, save for the iron railings or gratings. As Housel and the plaintiff approached the bridge on their outward way, they stopped, looked, and listened, but saw and heard nothing. They crossed the bridge and reached Pickel's house safe. He not being at home, they soon turned about and set forth on the return to Bloomsbury. As they approached the bridge in this direction, they drove down a slope, crossed a low or flat place in the road, and then made a sharp ascent to the bridge. By reason of the side of the cut the men could not see the railroad tracks, or any engine or car that might be standing thereon under the bridge or close thereto on either side, until they were actually upon the bridge or nearly so. A field of growing corn upon the right or east side also interfered with their view of the railroad. When within a few paces of the bridge, Housel stopped his horse or drew him down to a slow walk. Nothing being seen or heard by either man, they drove upon the bridge, and had gone a little beyond the middle of it, when the whistle of a locomotive engine standing upon the rails beneath was blown three or four times, and the engine moved slowly eastward, emitting steam which came up in clouds through the cracks between the planks, and enveloped the horse and men. The animal crouched, plunged, breaking the harness, and ran away. The plaintiff was thrown out of the carriage as they descended the slope away from the bridge, and sustained, besides bruises, a fracture of his arm, a compound fracture of the tibia, and a displacement of the kneecap. He had not recovered from his injuries at the time of the trial, December 13, 1904, and doubt was expressed by the medical witnesses respecting his recovery at any later day. The plaintiff had lost his position with the harvester company by reason of inability to do the work which he had formerly done. When the plaintiff rested, a motion for a nonsuit was made on behalf of the defendants, on the grounds that the defendants were not shown to have been guilty of any negligence in the operation of the railroad, and that the plaintiff was guilty of contributory negligence. This motion was granted by the court on the former ground, for the reason that it was not shown that the engineman knew that any persons were crossing the bridge, and that it was not shown that the whistle was blown where the engineman had no right to blow it or was not bound to blow it. To this ruling an exception was prayed and sealed. Judgment was entered upon the nonsuit, and thereupon a writ of error was sued out. Error was specially assigned in that the judgment was contrary to law, because the evidence showed that the defendants were guilty of negligence which resulted in injury to the plaintiff.

William C. Gebhardt, for plaintiff in error.

To blow a whistle or let off steam under the circumstances revealed by the proofs, whether the engineman knew that the plaintiff was passing over the bridge or not, was such negligence as to require explanation or excuse from the defendants.

On the proofs made by the plaintiff, there was a question for the jury whether the engineman must not have heard the horse and carriage upon the bridge, and thus have been aware of the presence of travelers.

H. B. Herr, for defendants in error.

No negligence was shown which would entitle the plaintiff to recover.

The opinion of the court, the foregoing statement of the case having been made, was delivered by GREEN, J.

1. In our examination of the case we are at once confronted by this portion of the judgment record: "That the jurors * * * went from the bar of the court to consider of their verdict, * * * and, after the said jurors had considered thereof and agreed among themselves, they returned to the said bar to give their verdict in this behalf, upon which the said Amos Mumma comes not, nor does he further prosecute his suit," etc. This entry would indicate that the plaintiff below had suffered a voluntary nonsuit after the case had been given to the jury and the jurors had retired. Such a course was permissible to a plaintiff at common law (Bauman v. Whiteley, 57 N. J. Law, 487, 489, 31 Atl. 982), but was forbidden in our practice, first by rule of the Supreme Court, and later by positive statute. See. now, P. L. 1903, p. 580, § 160. For such error in the record a reversal at the hands of this court would be proper. See Rollins v. Atlantic City R. R. Co. (1904) 70 N. J. Law, 664, 667, 58 Atl. 344. Nevertheless, were the judgment otherwise to be sustained, we might refrain from reversing on this ground alone, because a glance at the printed case shows that the entry is untrue; the plaintiff having been nonsuited by order of the presiding justice, before any evidence was offered by the defendants and, of course, before the case was given to the jury. Under such circumstances, the postea and judgment might, and doubtless would, be amended in the Supreme Court. See 1 Tidd's Pract. (9th Eng. Ed.) pp. 713, 714; 2 Tidd's Pract. (9th Eng. Ed.) p. 942; 1 Chit Arch. Pract. (12th Eng. Ed.) pp. 545-547; Apgar's Adm'r v. Hiler (1854) 24 N. J. Law, 808.

2. On a closer examination of the record, and of the evidence sent up with the bill of exception, we think that there are two legal principles which, singly or together, might and should have controlled the action of the learned trial justice on the motion to nonsuit These principles may be briefly set forth.

(a) The first is found in the maxim, "Res ipsa loquitur"—literally translated, "The thing itself speaks." This principle is that when, through any instrumentality or agency under the management or control of a defendant or his servants, there is an occurrence, injurious to the plaintiff, which in the ordinary course of things would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care. See Thompson on Neg. §§ 15, 7635; Smith on Neg. p. *246; Skinner v. Railway Co. (1850) 5 Exch. 787, 789; Scott v. London Dock Co. (1865) 3 Hurl. & Colt. 596, 601; Excelsior Electric Co. v. Sweet (1894) 57 N. J. Law, 224, 227-229, 30 Atl. 553; Sheridan v. Foley (1895) 58 N. J. Law, 230, 232, 233, 33 Atl. 484; Consol. Tract Co. v. Thalheimer (1896) 59 N. J. Law, 474, 476. 37 Atl. 132; Bergen County Traction Co. v. Demarest (1898) 62 N. J. Law, 755, 756, 42 Atl. 729, 72 Am. St Rep. 685; Shay v. Camden & Sub. Ry. Co. (1901) 66 N. J. Law, 334, 335, 49 Atl. 547; Paynter v. Bridgeton, etc., Traction Co. (1902) 67 N. J. Law, 619, 625, 52 Atl. 367.

(b) The second principle—or, better, rule— is that where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury. See Thompson on Trials, §§ 1664-1666; Thompson...