Murphy v. N. Jersey St. Ry. Co.

• Decision Date: 06 July 1911
• Citation: 81 N.J.L. 766,80 A. 331
• Parties: MURPHY v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

80 A. 331

81 N.J.L. 766

MURPHY

v. NORTH JERSEY ST. RY. CO.

Court of Errors and Appeals of New Jersey.

July 6, 1911.

Error to Supreme Court.

Action by Kate Murphy against the North Jersey Street Railway Company. Verdict for defendant was affirmed by the Supreme Court (73 Atl. 1119), and plaintiff brings error. Reversed.

Hood & Hood, for plaintiff in error.

Leonard J. Tynan, for defendant in error.

VREDENBURGH, J. In the early winter morning (about 7 o'clock) of December 8, 1904, the plaintiff, a passenger traveling upon the defendant's electric street railway car in Newark, N. J., while attempting to alight on her way from the rear platform of the car to the street, stepped with her right foot upon the step next below the platform, and, slipping on the ice which covered the step, fell down heavily backwards, striking her head upon it. The car was then standing still, having been stopped at her request in order that she might descend to the street, and she was carefully treading upon the step in making her exit from the car, when her foot slipped from under her upon the ice.

Her present suit is brought to recover damages from the railway company for the injuries (which were serious) sustained by her, and is based, by her declaration, upon charges therein to the effect that the defendant was negligent in suffering the step of the car to be covered with ice, and to be, from that cause, in a condition dangerous to her safety as a passenger obliged to make use of it. At the jury trial of the case, in the Essex county circuit court, the controverted questions were two; the first was simply whether the car step was or was not covered with ice at the time of the accident, and the second was whether the defendant had used due care to inspect and thoroughly clean the step of the car at the car barn previous to the accident.

The testimony of the plaintiff as to the first point, as well as of her witness, John Keener, who saw her fall and helped raise her up after her fall, was positive that when she trod upon the car step it was covered with a solid sheet of flat, smooth ice; the counter testimony of the defendant's witnesses was equally positive that at that time there was no ice upon the step; that only some soft, wet snow was upon it. This conflict of testimony presented nothing more than an ordinary jury question, to be settled in the jury box, and certainly did not, as it stood, justify the direction of any verdict by the court.

Regarding the second question, the testimony material for the purposes of this opinion may be fairly summarized as follows: The defendant introduced, among other witnesses, two car cleaners employed by it, Joseph Alsop and Richard Oliver, the men who claimed to have inspected and cleaned, on the day of and before the accident, the particular car in question (numbered 1,722). In their examination in chief, they stated in effect that they had, at the car barn, and before the car had left on the trip in question, inspected and thoroughly cleaned off the ice from the step upon which they heard the plaintiff had afterwards slipped. But upon their cross-examination, which was directed towards the methods pursued by them in removing ice from the step, and the thoroughness of the cleaning they had actually done to It, the following significant admissions were made by them: Joseph Alsop was asked: "Q. Was there much ice upon the car? A. Not much; no. Q. Where was the ice that was upon the car? A. Some on the floor; some, on the steps. Q. Front or rear? A. Both ends; rear and back. Q. Clear ice? Clean ice? A. Well, yes; it was clean ice. Q. Ice covering the entire step? A. There wasn't so much ice as there was snow; quite a little snow. Q. But there was some ice too? A. Yes; it was mixed in." Richard Oliver was asked: "Q. You swept off what you could sweep off with a broom? A. Yes, sir. Q. And the rest you left on? A. Yes, sir. What do you mean by the rest of it? Q. What you could not sweep off with a broom you left on? A. That wasn't very much. Q. Is it so that what you could not sweep off with a broom you left on? A. Yes, sir." Under this evidence as to the cleaning in question, it was open to the jury to say whether the step had been properly cleaned of ice by these witnesses on the morning of the accident.

It should be noted that, unless this alleged cleaning at the car barn had removed the ice from the step, the evidence shows it was not done at all prior to the accident. No other or later cleaning of the step was shown to have been made on that day at any time before the plaintiff's fall. It is the settled rule of law that, as against dangers that may reasonably be anticipated, the carrier is bound to exercise a high degree of care in behalf of its passengers in respect to the condition of its car platforms and steps.

The cases hold that carriers of passengers for hire are legally responsible for injuries happening to the passengers from dangers produced by the elements when they have assumed a dangerous form (such as the accumulation of ice upon the car steps, so as to cause the passenger using ordinary care to slip and fall), and when sufficient previous opportunity has been had to remove their effects or to remedy the danger; and their duty in such regard is not performed simply by appointing servants, whose duty it is to keep the car steps in a safe condition, nor is it any excuse that such servants neglected their duty; and, where a substantial doubt as to the actual performance of such duties by the servants appears by the evidence, the question should be settled by the jury. Weston v. N....