N.J. Traction Co. v. Danbech

• Decision Date: 12 April 1895
• Citation: 31 A. 1038,57 N.J.L. 463
• Parties: NEW JERSEY TRACTION CO. v. DANBECH.
• Court: New Jersey Supreme Court

31 A. 1038

57 N.J.L. 463

NEW JERSEY TRACTION CO.

v. DANBECH.

Supreme Court of New Jersey.

April 12, 1895.

(Syllabus by the Court.)

Action by John J. Danbech against the New Jersey Traction Company. Verdict for defendant. Rule to show cause why a new trial should not be granted discharged.

Argued November term, 1894, before BEASLEY, C. J., and VAN SYCKEL, DEPUE, and ABBETT, JJ.

A. Q. Keasbey & Sons, for the motion.

Samuel Kalisch, opposed.

BEASLEY, C. J. The facts of this case to which the law is to be applied are few, and, so far as those are concerned that can operate as efficient in the present inquiry, are undisputed. John J. Danbech, the plaintiff in the action, being a boy who had not attained his tenth year, entered into one of the street cars of the defendant on the invitation of the conductor. This official called the plaiutiff in, his purpose being to get him to buy for him a paper of cigarettes. The boy got upon the front platform, and stood there, and this is his account of the affair: "The conductor called me to the car, and asked me to go ami buy him a package of cigarettes, and I said, 'Yes.' I jumped upon the car. He had his hands in his pockets, to give me the money, * * * and the car gave a lurch, and the conductor jounced against the door, and then against me, and knocked me off." He further says that, while he was on the front platform, "the car gave a lurch, and the driver struck the horses to pull them on the track, and they started at a terrible rate, and that threw them on the cobble stones; that threw the conductor over to the door against" him (the plaintiff); and, in consequence of that, he (the plaintiff) was thrown from the car, and the injury complained of resulted. In view of the case thus made, the jury was instructed by the judge conducting the trial to this effect: That the conductor had been placed by the defendant in charge of the car, having the power and control over It, and it was his duty to regulate its movements; and that, if the plaintiff had entered the car on the Invitation of the conductor, he was there then of right. He was not a trespasser, nor was he a mere licensee. And the jury were then instructed that, if they found that to be the situation, thereby a duty was imposed on the defendant, which was this: "To exercise all reasonable care to prevent injury coming to the plaintiff in consequence of the position of danger he had been invited to assume; and, secondly, to abstain from doing any act which might increase the danger necessarily Incident to the position he was Induced to assume." The verdict of the jury was for the plaintiff.

The argument of the counsel of the traction company against this result was mainly based on the theory that the act of the conductor in inviting the boy to get on the car was not in any sense the act of the company, and that the latter, consequently, did not thereby assume any duty with respect to him. It was insisted that the duty of the conductor was well understood. It was to let passengers in and out of the cars, and to collect their fares, and he has no authority to ask persons to come upon the cars except as passengers. But it is not necessary at the present time to consider these assumptions, for the case before the court must be decided on an entirely different ground. The question is not as to the duty of the defendant towards persons of mature years, but what is that duty with respect to children. It might be quite reasonable to declare as a rule of law that a grown person has no right to enter a car except as a passenger, and, if he does so as the friend of the conductor, that such a situation creates no relationship between such person and the car company, and that the latter is under no obligation to see to...