Sandler v. Hudson & M. R. Co.
Decision Date | 01 July 1930 |
Docket Number | No. 63.,63. |
Citation | 151 A. 99 |
Parties | SANDLER et al. v. HUDSON & M. R. CO. |
Court | New Jersey Supreme Court |
Appeal from Court of Common Pleas, Hudson County.
Action by Mildred Sandler, by her next friend, and another, against the Hudson & Manhattan Railroad Company. From judgments for plaintiffs, defendant appeals.
Affirmed.
Argued January term, 1930, before GUMMERE, C. J., and CAMPBELL, J.
Edward A. Markley, of Jersey City, for appellant.
Fredman & Fredman, of Jersey City, for appellees.
The plaintiff below, Mildred Sandler, a young woman of twenty years of age, was injured at the Journal Square Station, Jersey City, of the defendant-appellant as she was about to board an uptown New York train on September 28, 1928, at about 8:10 a. m. She has a judgment for $1,300, and her father, the other plaintiff below, for $50, as a result of verdicts of a jury in the trial of an action for damages resulting from the alleged negligence of the appellant.
The defendant below appeals, and seeks a reversal of such judgments upon fifteen grounds argued under eleven heads or points.
(1) The first ground is that the trial court erred in refusing to direct a verdict in favor of the appellant. This is urged upon authority of Miller v. West Jersey and Seashore R. R. Co., 71 N. J. Law, 363, 59 A. 13, affirmed 79 N. J. law, 499, 76 A. 973; Lehberger v. Public Service, 79 N. J. Law, 134, 74 A. 272; Hoff v. Public Service, 91 N. J. Law, 641, 103 A. 209, 15 A. L. R. 860; Kalleberg v. Raritan, etc., R. R. Co., 91 N. J. Law, 222, 102 A. 350; Lerner v. Public Service, 83 N. J. Law, 64, 84 A. 618; and Exton v. Central R. R. Co., 62 N. J. Law, 7, 42 A. 486, 56 L. R. A. 508.
The principle running through all of these cases is that a common carrier of passengers must use reasonable care to protect passengers from dangers known, or which ought to be known, or anticipated by reasonable foresight. Such rule is firmly established.
But the situation in the present case is not one where some unexpected and unforeseen happening or act of a fellow passenger was, necessarily, the proximate cause of the injury to the plaintiff, below. The proofs here were that from 8 a. m. to 8:45 a. m., or thereabouts, was the so-called "rush" period at this station; that large crowds of passengers were usually and regularly to be found there during that time, and, as trains came in, the crowds of passengers would rush to the cars to gain entrance. This the proofs would tend to show was the condition on the morning in question. It further appears that, ordinarily, the appellant at that time in the day and on that platform, had four or five guards to control the crowd. Although appellant sought to establish that guards to this number were on duty on this platform on the morning in question, there is also proof, if believed, that there were none there at the time of the happening complained of, and that the crowd of passengers, uncontrolled, pushed and shoved each other in an effort to board the train, and that the plaintiff was pushed and carried along to the edge of the platform and off of it and into a space between two cars of a train then in the station.
Not only was there proof upon the part of the appellant that the usual number of guards were on duty at the time, but that one of these, whose station was at the point where plaintiff claimed to have been injured, testified that he was on duty, at his post, and that he saw no rushing, pushing, or disorder, and saw no one injured.
Under such condition of proofs a jury question was undoubtedly presented, and it was open to the jury to find that the appellant was or was not negligent, in not using reasonable care to provide guards or platform men of a reasonably sufficient number, and that, if such men and to such number were actually on duty, then whether or not they exercised due care for the safety of the passengers. We think, therefore, that there was no error in refusing to direct a verdict upon this ground.
(2) It was error to refuse to direct a verdict in favor of appellant because no negligenpe, if any was established, was the proximate cause of the happening complained of. This is urged upon the idea or theory that the happening was a sudden, unexpected, and extraordinary one, which the defendant company, in the exercise of reasonable care, was not called upon to anticipate, and which no amount of precaution or foresight could have protected the plaintiff against. This might have been spelled out of the proofs, but there were also proofs from which an opposite conclusion could be reached, and it was for the jury to find thereon. This question was therefore properly referred to the jury by the trial court.
(3) That it was error to have refused to nonsuit the plaintiff upon the allegations of negligence contained in the original complaint. We are quite unable to see how such action of the trial court prejudiced the appellant. From the proofs there is, at least, a strong suspicion that the happening did not take place as the plaintiff urged at the trial, but happened by her stepping into a narrow space between the edge of the platform and the side of the car where she proposed and sought to enter. Again we are constrained to say that from the proofs this was very properly a jury question.
(4) That it was error to refuse to charge appellant's requests numbered 23 and 24. These were:
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