Ochs v. Pub. Serv. Ry. Co.

• Decision Date: 19 June 1911
• Parties: OCHS v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

80 A. 495

81 N.J.L. 661

OCHS

v. PUBLIC SERVICE RY. CO.

Court of Errors and Appeals of New Jersey.

June 19, 1911.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Gustave Ochs against the Public Service Railway Company. Judgment of the Supreme Court (77 Atl. 533) reversing judgment of the district court for plaintiff, and he brings error. Reversed.

Benjamin M. Weinberg, for plaintiff in error.

Leonard J. Tynan, for defendant in error.

BERGEN, J. The plaintiff, while driving in his carriage, was run down by a trolley car of the defendant, the consequence being that the horse, wagon, and person of the plaintiff were injured. The plaintiff recovered in an action for the injury to the horse and carriage and thereafter brought suit for his personal injuries in which a motion for nonsuit was made and refused. The ground of the motion was "that the former suit, to wit, for property damaged, was a bar to the recovery in this suit for personal injuries arising out of the same accident." The plaintiff having judgment in the second suit an appeal was taken to the Supreme Court where the judgment below was reversed and the rule applied "that a single wrongful act can give rise to but one cause of action though it may result in different injuries, or injuries to different rights, as the cause of action grows out of the act itself, and not out of its results." This rule rests primarily upon the conclusion that all injurious results from a single negligent act constitute but one cause of action, and the rule has the support of authorities entitled to serious consideration, but courts of equal learning and experience have held that there is a distinction to be made, and also that the resultant injury and not the negligent act is the ground of action.

As the question is now before this court for the first time, we are at liberty to adopt the rule of law which appears to us to be most logical and reasonable, and we are of opinion that there is a clear distinction between the two classes of injuries, and that it is the injury and not alone the negligent act which gives rise to the right of action, for a negligent act is not in itself actionable, and only becomes the basis when it results in injury to another. In order to support an action there must be not only the negligent act, but a consequential injury which is the gravamen of the charge, and this distinction between the negligent act and its consequences is recognized in deciding when a cause of...