Rourke v. Hershock, A--50

• Decision Date: 09 January 1950
• Docket Number: No. A--50,A--50
• Citation: 70 A.2d 489,3 N.J. 422
• Parties: ROURKE v. HERSHOCK et al.
• Court: New Jersey Supreme Court

Page 422

3 N.J. 422

70 A.2d 489

ROURKE v. HERSHOCK et al.

No. A--50.

Supreme Court of New Jersey.

Argued Nov. 28, 1949.

Decided Jan. 9, 1950.

Francis M. Seaman, Perth Amboy, argued the cause for respondent.

Carl T. Freggens, Newark, argued the cause for appellant (Richard Fryling, Newark, attorney).

The opinion of the court was delivered by

CASE, J.

The dispute centers upon the degree of care which the Public Service Coordinated Transport, a common carrier, herein called the defendant, was obliged to exercise toward the plaintiff under the peculiar facts of the case.

On a dark night, January 21, 1947, plaintiff, knowing his destination only by name and unacquainted with the territory covered by the route, entered the defendant's bus at Elizabeth, paid his fare and told the driver he wanted to go to Barber. Plaintiff was carried beyond his destination and was let out at Perth Amboy where he entered another of defendant's buses. He asked the driver of that bus whether it went to Barber, and was told that it did. He explained that he had just been carried beyond Barber and wanted to go there, and the driver said he would let him out at that place. Plaintiff paid his fare, took a seat and the bus started. Presently plaintiff again asked the driver to tell him when the bus reached Barber and the driver once more undertook to do so. After a few minutes plaintiff went to the driver and asked, 'How about Barber?' The driver said, 'We passed it. I will stop a bus coming down the other way and tell him to let you off there'. After a few minutes the bus stopped near a bend in the road at a point about one hundred sixty feet up a three-hundred-foot grade over a railroad overpass. It was not a transfer point, but the plaintiff did not know that and was not informed. The driver signaled a bus going in the opposite direction and that bus stopped also, in such a relative position as that, in effect, the roadway space available for moving traffic was narrowed by the width of the two vehicles. The driver of the first bus told the driver of the second that he had a passenger for him; that he wanted the passenger taken back to Barber because he had 'overridden'. He also told plaintiff to go around the front of the bus on which he then was and get on the other bus. Plaintiff, following directions, got off, and passed around the front of the first bus in the direction of the second; as he did so the two drivers were in conversation with each other. He looked to his right and saw that there was nothing coming. At the edge of the bus he looked to his left. Because of the angle at which the bus was placed with respect to the curve he could see only about a hundred feet, but there was nothing within his line of view. He was not warned by the driver about the approach of an automobile. He took a couple of steps more toward the other bus and as he did so saw the headlights of a car, then distant about one hundred fifty feet, coming rapidly from his left. He did not try to complete the crossing lest he could not make it; he hesitated to retreat fully into the path of the bus he had just left lest that vehicle start up and hit him. So he stepped back close to that bus but not in its way. He was struck by the oncoming car and seriously injured. He brought this suit against the carrier and the cardriver. The jury returned a verdict for plaintiff as against the defendant carrier, but a verdict of nonsuit in favor of the cardriver. The Appellate Division affirmed. 4 N.J.Super. 44, 66 A.2d 341. We certified the case on defendant's petition. The alleged trial error before us is the refusal of the court to direct a verdict for the defendant.

Defendant contends that it was not under a duty to do more than deposit the passenger at a point that would enable him safely to reach the side of the road at the right of the bus. We do not find any substantial dispute in the testimony over the assertion that the bus did stop at such a point, but the issue of negligence may not be so simply dismissed.

It was competent for the jury to find a state of facts leading to the conclusion that the relationship of carrier and passenger had not ended. The facts are not free of dispute; we have stated them in a way that assumes the truthfulness of the plaintiff's evidence end of the inferences of fact that may be legitimately drawn therefrom, for such was the attitude the trial court was obliged to assume in disposing of the motion. The carrier had twice taken its passenger beyond his destination; the last time against the certain and reiterated promise of the driver to discharge him at the place where he wanted to go. The night was dark and the passenger was in strange surroundings. He first relied upon defendant to drop him where he wanted to go and later, that having failed, upon the driver's instructions as to what he should do and how he should do it in order to be taken, as a passenger, to his destination. Assuming the facts to be as we have recited, we think that the duty of the defendant did not end with delivery at a point where access could safely be had to the roadside on the right. The passenger was acting under the personal direction and oversight of the driver. The ride was not ended when he alit. He was still in the physical presence, and was obeying the instructions, of the driver in the transfer from one to another of defendant's vehicles. There were numerous incidents with respect to which defendant could have exercised greater care, among them the selection of relative location, the position in which the bus was stopped, the placing of the buses with respect to each other and the passing traffic, advance general warning to the passenger of the danger from passing traffic, watchfulness for movements of other vehicles in season to give audible and efficient warning to the passenger. It may be that as to no one of these elements did the defendant violate a duty ordinarily owing to a disembarking passenger and yet that the combination of these elements together with an invitation to leave the bus under the named circumstances created an unusual condition from which an unfulfilled duty arose. Gore v. Delaware, Lackawanna and Western Railroad Company, 89 N.J.L. 224, 98 A. 389 (E. & A. 1916). We think that the jury might, from the proofs, spell an invitation which placed upon the defendant an unmet duty to use care commensurate with the danger to be reasonably apprehended therefrom. The passing, in speed, of an automobile on the highway was a danger to be reasonably apprehended.

The general rule is that a common carrier of passengers must use a high degree of care to protect them from danger that foresight can anticipate. Rivers v. Pennsylvania Railroad Co., 83 N.J.L. 513, 83 A. 883 (E. & A. 1912). Against the pertinence of that rule to the instant case appellant cites five New Jersey decisions, Higgins v. Del Monte and Public Service Coordinated Transport, 119 N.J.L. 3, 194 A. 256 (E. & A. 1937), Robertson v. West Jersey & Seashore S.R. Co., 79 N.J.L. 186, 74 A. 300 (Sup.Ct.1909), Walger v. Jersey City, etc., Street Railway Company, 71 N.J.L. 356, 59 A. 14 (Sup.Ct.1904), Whilt v. Public Service Corporation, 76 N.J.L. 729, 72 A. 420, 74 A. 568 (E. & A. 1908), and Kelson v. Public Service R.R. Co., 94 N.J.L. 527, 110 A. 919 (E. & A. 1920). Four of them are 'carry-over' cases, and one a 'transfer' case. None of them, we think, serves as a precedent for keeping the present case from the jury.

In Higgins v. Del Monte, supra, a street car passed some distance beyond the point where the passenger had said he wished to alight and when the car stopped he asked the motorman to hold the car so that he might pass in front and have the benefit of the lights of the car; that was done; the man passed in front of the car, walked some distance along the left side; the car started on; the man walked diagonally...