Potter v. Pa. R. Co.
| Decision Date | 27 September 1934 |
| Docket Number | No. 130.,130. |
| Citation | 174 A. 734 |
| Parties | POTTER v. PENNSYLVANIA R. CO. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
1. A ground of appeal, that "the judgment of the trial court is contrary to the credible evidence given in the cause," is nugatory in an appeal at law, where the credibility of evidence is for the jury.
2. A ground of appeal, that the trial court refused to direct a verdict when requested, on the ground that the clear weight of credible evidence was with the appellant, is unavailable on appeal.
3. Plaintiff, claiming to be a passenger on a vestibuled train of defendant, attempted, after the train had started, to pass from one car to another in search of his rubbers, and, as he claimed, was thrown off the train through an open vestibule door. The trial court charged in regard to section 39 of the Railroad Act (3 Comp. St. 1910, p. 4240, § 39, P. L. 1903, p. 666), "I am not able to say to you that that statute applies to this suit, for the reason that the train in question was a vestibuled one, and that it may be fairly said that vestibuled trains are provided for the safety of passengers particularly in passing from one car to another, but, whether that be so or not, if the company provided such a train, no matter what the motive may have been, then it was under the duty of exercising a high degree of care to see that such train was kept in proper condition for the safety of its passengers." Held, no error.
4. Request to charge that the jury might apply the maxim "falsus in uno, falsus in omnibus" and should do so, held properly refused as controlling the jury in that regard. Appeal from Supreme Court.
Action by Leslie Potter against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
W. Holt Apgar, of Trenton, for appellant.
Franklin H. Berry, of Toms River, for respondent.
The plaintiff was a passenger on a late train of the defendant company from New York to Asbury Park, leaving New York at 12:10 midnight. He and his brother and a friend were in the last car. About 2 a. m., when the train stopped at Asbury Park, the party got out on the east or left side, according to Charles Potter, and apparently had walked up to near the head of the train when the plaintiff recollected that he had left a pair of rubbers on the train; so he jumped on the nearest car platform next to the baggage car, and was engaged in making his way back toward the rear car where the rubbers were, when the train, having stalled, jolted or rocked, as he was passing from one car to another and threw him off to the West of the train. The train was vestibuled, and the evidence indicated that the vestibule doors were all open on that side. Plaintiff sustained a severe scalp wound and concussion of the brain.
The negligence charged in the complaint is failure to use proper care to have the cars, passageways, doors, platforms, and connecting plates, with the appurtenances, in proper and safe condition for the use of passengers. At a former trial, there was a verdict for plaintiff, which, on rule to show cause, was set aside. Then the case went back for this second trial, at which the plaintiff had a verdict of $3,000, and the trial judge refused a rule to show cause, whereupon the defendant applied to the Supreme Court for a rule, and it was again refused by that court, as we are informed by the brief for appellant.
There are sixteen grounds of appeal, of which the first may be disregarded as merely charging general error.
The second is that the "judgment of the Supreme Court is contrary to the credible evidence given in the cause." Under this counsel undertakes to review the whole evidence as though on a rule to show cause. Under the settled practice we are not concerned on this appeal with either the weight or the credibility of the evidence.
The third ground is abandoned.
The fourth ground is divided into four subdivisions, a, b, c, and d. Subdivision a is that there was no evidence showing negligence. If a duty of care existed, we think there was such evidence. Subdivision d is that the court should have directed a verdict because the clear weight of credible evidence was with the defendant—which is substantially the same as the second ground just considered. It is urged that the appellate court should not hesitate to set aside a verdict on appeal as tantamount to an error in law. In like manner it is sometimes...
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Barrie v. Central R. Co. of New Jersey
...care by the carrier in such cases as Rivers v. Penna. R.R. Co., 83 N.J.L. 513, 83 A. 883 (E. & A.1912); Potter v. Pennsylvania Railroad Co., 113 N.J.L. 441, 174 A. 734 (E. & A.1934); and Holle v. D., L. & W.R.R. Co., 122 N.J.L. 358, 5 A.2d 874 (E. & A.1939). Contra: Wright v. Central R.R. C......
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Wright v. Cent. R. Co. of N.J.
...passed over the "bump." The appellant argues that the issue here is within the rule laid down by this court in Potter v. Pennsylvania R. Co., 113 N.J.L. 441, 174 A. 734; and Holle v. Delaware, L. & W. R. Co., 122 N.J.L. 358, 5 A.2d 874. In the former case all of the vestibule doors were ope......
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Reading Co. v. Van Ness
...train if it lurched in such a way that he could no longer retain his balance. The appellee relies upon the cases of Potter v. Pennsylvania R. Co., 113 N.J.L. 441, 174 A. 734, and Holle v. Delaware L. & W. R. Co., 122 N.J.L. 358, 5 A.2d 874. Both cases are very similar in circumstances. In t......
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Holle v. Del., L. & W. R. Co.
...safety equipment provided from Hoboken to Newark. Mr. Justice Parker, in speaking for this court in Potter v. Pennsylvania R. Co., 113 N.J.L. 441, at page 444, 174 A. 734, at page 736, said: "It is true as a practical matter that the vestibules of trains are largely for the very purpose of ......