Reisman v. Pub. Serv. Corp. of N.J.

• Decision Date: 20 November 1911
• Citation: 82 N.J.L. 464,81 A. 838
• Parties: REISMAN v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.
• Court: New Jersey Supreme Court

81 A. 838

82 N.J.L. 464

REISMAN

v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1911.

(Syllabus by the Court.)

Error to Circuit Court, Camden County.

Action by Minnie Reisman against the Public Service Corporation of New Jersey. Judgment for defendant, and plaintiff brings error. Affirmed.

John W. Wescott, for plaintiff in error. Lewis Starr, for defendant in error.

PARKER, J. The question is whether there was error in the direction of a nonsuit in the Camden circuit court. The declaration charges that the defendant operated a pleasure resort called Wood Lynne Park, and invited plaintiff into the same for the purpose of entertainment and amusement; and that while she was there defendant's agents negligently and without warning set off a sky rocket which struck and injured plaintiff.

The undisputed or indisputable facts are that the defendant owned or controlled the resort in question; that plaintiff was invited to enter it as an incident of being a passenger on defendant's trolley car, and did enter it accordingly for the purpose of witnessing an exhibition of fireworks; that defendant's agent, one Le Cato, had employed one Romain who was in the fireworks business, to give the exhibition; that the place designated for the setting off of the fireworks was upon an island, to which the spectators did not have access, and from which the plaintiff and other spectators were separated by a sheet of water, the distance between them and the fireworks being between 300 and 400 feet; and that defendant employed policemen to control the spectators and keep them within the limits set apart for them. All these details were arranged by or under the authority of defendant. As to the setting off of the fireworks, the evidence is equally clear that while there was in all probability a written contract between Romain and the defendant or its agent Le Cato, the defendant neither had nor exercised any control whatever over Romain except as to the place and time, where and when the fireworks were to be set off, and that certain stipulated fireworks were to be furnished for the agreed price. The written contract, if one existed, was not put in evidence because plaintiff had not called for it under subpoena or otherwise, and defendant was not put to its proof. As to this phase, the case stood substantially as counsel for plaintiff puts it in his brief: "The corporation said to Romain through Le Cato, its authorized agent: 'How much will you charge for producing and exhibiting fireworks?' Romain stated his terms, they were accepted, the price paid and the display given."

The accident was apparently due to a misdirected rocket falling or shooting into the crowd and striking the plaintiff; and as will be seen from the abstract of the declaration at the head of this opinion, the attempt is to hold the defendant as for the negligence of an agent or servant in setting off the rocket in question. But as we read the brief of plaintiff's counsel (there was no oral argument) no such claim is now made. He says: "There is no pretense that the rocket which did the...