Schott v. Weiss

• Decision Date: 18 November 1918
• Docket Number: No. 96.,96.
• Parties: SCHOTT v. WEISS.
• Court: New Jersey Supreme Court

105 A. 192

92 N.J.Law 494

SCHOTT

v. WEISS.

No. 96.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1918.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Frank Schott against Benjamin Weiss. Judgment for plaintiff, and defendant appeals. Affirmed.

Pomerehne & Laible, of Newark, for appellant.

Church, Harrison & Roche, of Newark, for appellee.

BLACK, J. This was a suit to recover damages for personal injuries. The trial resulted in a verdict for the plaintiff. The essential facts in brief are: The plaintiff, Frank Schott, was a passenger on an automobile known as a jitney. The route of the jitney was from Newark to Elizabeth. The jitney bus in question was a large one, capable of seating 27 persons. The accident happened at night, on the evening of July 30, 1917. The plaintiff, Frank Schott, had signaled the driver to stop at the next corner, Coe avenue. He was in the act of rising from his seat, preparatory to leaving the jitney bus. The front wheel of the jitney bus struck a large stone in the road. He was thrown violently against the right-hand curb. By reason of the impact, the plaintiff was thrown out through the door of the jitney bus between the vehicle and a telegraph pole. The result of the accident was the plaintiff sustained a broken rib and a punctured lung. The trial court refused to nonsuit the plaintiff, on the motion of the defendant. This is the' only substantial basis of appeal. There are, however, ten grounds of appeal stated, but they are argued under one head in the appellant's brief, viz. that there was no evidence on which the defendant could be charged with negligence. This needs no discussion. The trial judge rightly held that the case as presented by the plaintiff raised a jury question. This is quite evident from a recital of the facts above. It was not error to refuse a nonsuit by the trial judge. One other point may be noticed briefly.

It is urged that a jitney bus operator is not a common carrier of passengers. This is not so in point of law. Desser v. City of Wichita, 96 Kan. 821, 153 Pac. 1194, L. R. A. 1916D, 246; Nolen v. Riechman (D. C.) 225 Fed. 812, 819; Moore on Carriers, vol. 2, p. 944; Fetter on Carriers of Passengers, vol. 1, par. 202; 10 C. J. p. COS, par. 1034; 4 R. C. L. par. 468, p. 1000; Huddy on Automobiles (4th Ed.) par. 372. Common carriers of passengers are those who undertake to carry all persons indifferently who apply for passage. To constitute one a common carrier of...