Rapp v. Butler-Newark Bus Line, Inc.

• Decision Date: 04 August 1927
• Docket Number: No. 50.,50.
• Parties: RAPP et al. v. BUTLER-NEWARK BUS LINE, Inc.
• Court: New Jersey Supreme Court

138 A. 377

RAPP et al.

v. BUTLER-NEWARK BUS LINE, Inc.

No. 50.

Supreme Court of New Jersey.

Aug. 4, 1927.

Appeal from Circuit Court, Essex County.

Action by Henrietta Rapp and husband against the Butler-Newark Bus Line, Inc. From a judgment for plaintiffs, defendant appeals. Affirmed.

See, also, 137 A. 524.

Argued January term, 1927, before Gummere, C. J., and Trenchard, J.

John A. Laird, of Newark, for appellant.

John A. Matthews, of Newark, for respondents.

GUMMERE, C. J. The appeal in this case was taken by the defendant from a judgment entered upon a verdict rendered against it. The appeal was dismissed by this court, for the following reason: The state of the case showed that the defendant had been allowed a rule to show cause why the verdict rendered against it should not be set aside, and that, after argument, the rule was discharged. The state of the case, however, failed to show that the rule contained a reservation of any exceptions, and the appeal was, for this reason, dismissed. On an application to reinstate the appeal, counsel satisfied the court that the exceptions which he desired to argue on this appeal were in fact reserved and, for this reason, the appeal has been reinstated.

This action was brought by the plaintiffs, Henrietta Rapp and her husband, to recover compensation for injuries received by her while traveling as a passenger on a bus owned and operated by the defendant and the expenses and loss of services incurred by the husband by reason thereof. These injuries were the result of the coming loose of the right rear wheel of the bus from the axle to which it had been attached, and its slipping off the axle, thus permitting the axle itself to go through the side of the bus and strike the plaintiff.

The first ground upon which we are asked to reverse this judgment is directed at the refusal of the trial court to grant the defendant's motion for a nonsuit at the close of the plaintiff's case. The ground upon which the motion was based was that the plaintiffs, upon the demand of the defendant, had submitted a bill of particulars of the alleged negligent acts of the defendant which were the producing cause of the injuries, and that there had been no proof indicating any such negligence on the part of the defendant.

The statement in the bill of particulars was that the bus in which Mrs. Rapp was riding was not in proper condition; that some of the attachments which held on the rear right wheel of the bus were not properly fastened or adjusted to the axle; and that, as the result thereof, the wheel became loose from the axle; that the defendant did not keep this mechanism which attached the wheel to the axle in proper condition, and did not properly supervise the connection between it and the axle, and did not make a proper inspection of the said bus to keep it in a condition suitable and safe for the passengers who were riding thereon. The primary cause of the accident, i. e., the wheel coming loose from the axle, as appears in the statement of the facts above set out, is clearly indicated in the bill of particulars.

It is argued, however, that the nonsuit should have been granted because the accident did not itself speak negligence on the part of the defendant, and, further, that the doctrine of res ipsa loquitur had been abandoned by the plaintiffs by alleging in their bill of particulars specific acts of negligence. We think that these contentions are without merit. As to the last contention: The bill of particulars was furnished to the defendant in compliance with its demand for such specification. The theory that a defendant, by the making of such a demand, can deprive a plaintiff of the...