N.Y., L. E. & W. R. Co. v. Ball

• Decision Date: 01 June 1891
• Court: New Jersey Supreme Court
• Parties: NEW YORK, L. E. & W. R. CO. v. BALL.

21 A. 1052

53 N.J.L. 283

NEW YORK, L. E. & W. R. CO.

v. BALL.

Supreme Court of New Jersey.

June 1, 1891.

(Syllabus by the Court.)

On rule to show cause why a new trial should not be granted, the case having been tried in the circuit court, Essex county, before Judge Depue and a jury.

Argued before Dixon and Magie, JJ.

C. Parker, for the rule.

F. W. Stevens, contra.

MAGIE, J. Ball, the plaintiff, was the holder of a ticket, issued by defendant, and valid for a continuous passage each way daily between Newark and New York, on the railroad of defendant, for the month of May, 1888. On May 11th plaintiff, who was smoking, took a train at Newark, entered the smoking compartment of a combination car, and, finding all seats therein occupied, passed through it into the baggage compartment, which was at the rear of the same car. The car was the rear car of the train. When the train reached the west end of defendant's tunnel, it was stopped by signal, and held waiting the passage through the tunnel of a train on defendant's main line. While standing at that place, a train of the New York & Greenwood Lake Railroad Company, running by agreement on defendant's track, approached from the west, and ran into the rear of the train whereon plaintiff was. He had remained standing in the baggage compartment since ho had entered it, and was standing therein up to the moment of the collision, when he received serious injuries in attempting to escape therefrom. A verdict was rendered in favor of plaintiff for $25,000. A rule to show cause why the verdict should not be set aside having been allowed, defendant's counsel now urges that it should be made absolute on one of three grounds, viz. (1) That there was not sufficient evidence to establish defendant's liability for the injuries, but that, by the weight of evidence, such injuries appeared to have been caused either by mere accident or by the negligence of the employes of the New York & Greenwood Lake Railroad Company, without any contributing fault of defendant; (2) that, if defendant was in fault, plaintiff cannot recover under the circumstances proved; and (3) that the damages awarded were excessive.

With respect to the first point, it appears that the jury were explicitly instructed that defendant's liability depended on their finding preponderating evidence of its bavins been at fault and negligent in causing or contributing to the collision whereby plaintiff was injured. The instructions were unexceptionable, and the only question, therefore, is whether the conclusion of the jury lacks the support of the requisite evidence. My examination of the evidence has convinced me that not only could an inference of defendant's fault and negligence be legitimately drawn therefrom, but that such an inference was required by proof that amounted almost to demonstration. About 2,500 feet west of the rear of the train in which plaintiff was, the railroad of defendant is carried over the Hackensack river by a drawbridge. It was the duty of the bridge tender, an employe of defendant, to permit no train to pass east towards the tunnel until at least three minutes had elapsed since the last preceding train had passed in that direction. The train that carried plaintiff had been permitted to pass, and proceeded, with speed greater than usual, (because considerably behind time,) to the western entrance to the tunnel, where it was stopped. Upon stopping, it was the duty of one of the trainmen to go back immediately with a flag to warn approaching trains. He had just stepped from the train with a flag in his hand when the collision occurred. It was proved that the colliding train approached and passed the Hackensack bridge without being arrested or held by the bridge tender. It proceeded thence to the point of collision at about its usual speed, being but little behind time. Taking into consideration the distance to be traversed and the speed attained, and assuming that the colliding train did not pass the bridge until three minutes after the plaintiff's train had passed, the inference is irresistible that there was time to flag the approaching train. If so, the trainman whose duty it was to flag that train was negligent. It may be added that, if the inference be drawn that the colliding train was suffered to pass the bridge before three minutes had elapsed, the bridge tender, defendant's employe, was at fault. The verdict cannot be disturbed on this ground.

The next contention is that plaintiff, by his own conduct, has disabled himself from enforcing the liability which would otherwise arise from defendant's negligence. This is first argued on the ground that plaintiff, by taking and retaining his position in the baggage compartment, designed, not for the carriage of passengers, but of baggage, had quitted the protection of his contract for safe carriage. The written contract of defendant, evidenced by the ticket, was for a continuous passage. But it is now settled that a railroad carrier, by its acceptance of a passenger, as passenger, comes under an obligation to take due and reasonable care for his safe carriage, which obligation arises, by implication of law, and independent of contract, so that it may exist, although the contract of carriage is illegal, or there is no express contract of carriage. Railroad Co. v. Trautwein, 52 N. J. Law, 169, 19 Atl. Rep. 178. It is unnecessary to determine in this case whether, and to what extent, the obligation to carry an accepted passenger with due care will be waived or discharged by the misconduct of the passenger in violating reasonable rules made by the carrier; for, while it appears that defendant had made a rule requiring its employes not to permit a passenger to ride in baggage-ears, it also appears, not only that plaintiff was not informed of the rule, but that the employes of defendant who managed this train had frequently before permitted plaintiff and other such passengers to thus ride, and on the trip in question the conductor of the train had...