Rochat v. N. Hudson Co. Ry. Co.

• Decision Date: 31 March 1887
• Parties: ROCHAT, Adm'r, etc., v. NORTH HUDSON CO. RY. CO.
• Court: New Jersey Supreme Court

9 A. 688

49 N.J.L. 445

ROCHAT, Adm'r, etc.,

v. NORTH HUDSON CO. RY. CO.

Court of Errors and Appeals of New Jersey.

March Term, 1887.

(Syllabus by the Court.)

In error from the supreme court. See 5 Atl. Rep. 276.

J. C. Besson and H. C. Pitney, for plaintiff in error.

M. T. Newbold and G. Collins, for defendant in error.

DIXON, J. On September 1, 1884, John May was injured by a horse car of the defendant, and subsequently brought suit in the Hudson circuit for the resulting damages. He there recovered judgment, which was afterwards affirmed in the supreme court on writ of error, and is now in this court for review.

The principal assignment of error is based upon an exception to the refusal of the circuit to nonsuit the plaintiff at the trial for want of proof of negligence on the part of the defendant. This assignment seems to have been deemed unavailable in the supreme court, because, after the nonsuit was refused, the defendant introduced evidence tending to show how the injury was occasioned, and did not subsequently renew the motion, or ask the court to instruct the jury to find for the defendant on this ground. But this idea is not in accord with the settled doctrine and practice of this court. At least since Central R. Co. v. Moore, 24 N. J. Law, 824, exceptions of this nature have been constantly regarded as properly sealed, and judgments have thereupon been affirmed and reversed. New Jersey R. A. T. Co. v. West, 33 N. J. Law, 430; New Jersey Exp. Co. v. Nichols, Id. 434; Delaware, L. & W. R. Co. v. Toffey, 38 N. J. Law, 525; Pennsylvania R. Co. v. Righter, 42 N. J. Law, 180; Delaware, L. & W. R. Co. v. Dailey, 37 N. J. Law, 526. The objection made to the practice is that, after the exception is allowed, the defendant may have supplied the defect in proof complained of, and, although such supplemental evidence ought to prevent the reversal of the judgment, yet it would not theoretically, and, if the defendant insisted on his legal right to have the bill sealed immediately upon the refusal, could not actually, be embodied in the bill. But the objection is without substance. The bill is never in practice sealed until all the testimony is put in, and therefore the trial court is able to refuse to affix its seal unless all the pertinent evidence is set forth, and the appellate court will examine all the testimony before it to see whether the defect is remedied. Perth Amboy Manuy'g Co. v. Condit, 21 N. J. Law, 659; Delaware, L. & W. R. Co. v. Dailey, 37 N. J. Law, 526. Even if the bill had been sealed at once upon the refusal, the trial court might justly strike that bill from its records, because it did not fully present the grounds on which the question raised ought to be decided. A similar objection might be urged against the reversal of a judgment for the improper admission of a document insufficiently proved, since due proof might afterwards in the trial have been produced; but such reversals do take place when the proper proof is not added, and, when it is, the error is disregarded. Practically no difficulty results from these rules in the administration of the law. The powers of the court are ample to insure their use for the furtherance of justice only. The assignment of error on this exception should therefore be considered.

The testimony most favorable to the plaintiff, tends to prove that on September 1, 1884, towards evening, John May stood smoking on the right side of the front platform of a horse car belonging to the defendant. He was directly behind the brake, facing it, with his back against the front of the car, and holding the hand-rail behind him with his left hand. He was about 35 years of age, in good health, and...