Shimp v. Pennsylvania R. Co.

• Decision Date: 04 January 1951
• Docket Number: No. A--523,A--523
• Citation: 11 N.J.Super. 88,78 A.2d 111
• Parties: SHIMP et al. v. PENNSYLVANIA R. CO.
• Court: New Jersey Superior Court — Appellate Division

Page 88

11 N.J.Super. 88

78 A.2d 111

SHIMP et al. v. PENNSYLVANIA R. CO.

No. A--523.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 11, 1950.

Decided Jan. 4, 1951.

Baruch S. Seidman, South River, argued the cause for respondent (Irving W. Rubin, New Brunswick, attorney).

Stephen V. Strong, New Brunswick, argued the cause for appellant (Strong & Strong, New Brunswick, attorneys).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

The railroad appeals from a judgment entered in Middlesex County Court on a jury verdict in plaintiffs' favor. The railroad argues the trial court erred in denying its motions for dismissal at the end of the plaintiffs' case and for judgment at the end of the whole case. We consider only the ruling denying the motion for judgment. City National Bank & Trust Co. v. Hassler, 9 N.J.Super. 153, 75 A.2d 546 (App.Div.1950).

On the morning of May 2, 1949, the plaintiff, Beatrice Shimp, went with her mother and 26-months old baby to defendant's railroad station at New Brunswick where her mother was to board a train for Connecticut. She bought her mother a ticket and when the train arrived Mrs. Shimp, carrying her mother's suitcase and the baby, boarded one of the coaches of the 16-car train, and accompanied her mother to a seat 'about in the middle of the coach' where she left the suitcase and bid her mother good-bye. She immediately started to leave the coach and walked forward to the vestibule carrying the baby. Her testimony was that the train was standing still as she began to descend the steps to the platform. She said, as 'I was stepping down, the first or second' step, 'the train gave a severe jerk and I fell off the train.' She was holding the baby with both arms and was not using either side handrail.

These facts are taken entirely from Mrs. Shimp's testimony, which was the only evidence offered on her behalf as to the happening of the accident, and which testimony was sharply controverted by the defendant's proofs which tended to show she had jumped from the train as it was moving out of the station. In deciding whether this case was properly submitted to the jury, however, we give Mrs. Shimp the benefit of all the evidence in her favor as well as all inferences favorable to her which can reasonably be drawn from the testimony adduced by both sides. Circulli v. Licata, N.J.Super., 77 A.2d 288 (App.Div.1950).

What relation obtained between Mrs. Shimp and the defendant? She was not a passenger and had no intention to become one. Her only purpose was to assist her mother. She admitted she did not speak to any railroad employee before boarding or while on the train. She said she saw none at any time, but it is not contended on her behalf that none was present. The fact appears to be to the contrary; the conductor and eight other trainmen who were members of the crew of this train all testified in some detail as to their respective assignments and actions in discharging their duties while the train was at the station. Since she on her own admission entered the train without notice to or knowledge by the defendant as to her purpose, or otherwise of her intent to alight before the train started, and there were no proofs from which such notice or knowledge could be inferred, did she prove a cause of action against the defendant?

While the briefs cite no New Jersey decision which has considered the question, and our own research has discovered none, there is agreement in the decisions outside this state that a person boarding a train to render assistance to a passenger is not a trespasser, but there is disagreement whether the person has the status of a passenger, invitee or licensee. Annotation, 11 A.L.R.2d 1075; Otto v. Milwaukee N.R. Co. (1912), 148 Wis. 54, 134 N.W. 157 (licensee); Barrett v. Brooklyn Heights R. Co., (1919), 188 App.Div. 109, 176 N.Y.S. 590, affirmed 231 N.Y. 605, 132 N.E. 906 (licensee); Lewis v. Illinois General R. Co. (1928), 319 Mo. 233, 3 S.W.2d 371 (invitee); Chesapeake & Ohio R. Co. v. Paris' Adm'r (1910), 111 Va. 41, 68 S.E. 398, 28 L.R.A.,N.S., 773 (invitee); Arkansas & L.R. Co. v. Sain (1909), 90 Ark. 278, 119 S.W. 659, 22 L.R.A.,N.S., 910 (invitee); Louisville & N.R. Co. v. Crunk, (1889) 119 Ind. 542, 21 N.E. 31 (passenger). We think the sound view is that declared in the large majority of the cases that, while the person is not a trespasser, or mere licensee, a carrier sustains no such relation to a person going on a train to assist a passenger as would impose upon the carrier any duty of extraordinary care and that the law exacts of the carrier toward such person only the duty of ordinary care which is owed an invitee. Lucas v. New Bedford & Taunton R. Co., 72 Mass. 64, 6 Gray 64 (1856).

A person who goes to a railroad station to assist a passenger in entering a train, goes with at least the tacit invitation of the carrier. While so engaged he does not stand in the relation to the carrier of a bare licensee, but should properly be deemed to have been invited to be there by virtue of the relation existing between the carrier and the intending passenger. The practice of persons not thus intending to be passengers, to assist passengers on and off trains at regular station stops is so well known that we may take judicial notice, in the absence of contrary proofs, that the practice is approved and acquiesced in by the railroad. So, Mrs. Shimp, in going upon this train to render assistance to her mother had an implied invitation to board the train to render the assistance.

The railroad's brief cites Fleckenstein v. Great Atlantic & Pacific Tea Co., 91 N.J.L. 145, 102 A. 700, L.R.A.1918c, 179 (E. & A. 1917) as supporting the view Mrs. Shimp was a mere licensee. That case held that a person was a mere licensee who accompanied another to a merchant's store where the other intended to buy something only for himself and not for the person and the person intended to buy nothing. But see Den Braven v. Meyer Brothers, 1 N.J. 470, 64 A.2d 219 (1949). In any event the situations are hardly analogous. The aid given a passenger by a person boarding a train for that purpose is beneficial not only to the passenger but to the carrier as well. Such aid tends to the timely completion of the railroad's business at the station and the maintenance of its operating schedules. In Little Rock & Forth Smith Railway v. Lawton, 55 Ark. 428, 18 S.W. 543, 544, 15 L.R.A. 434 (Sup.Ct.1892), it was said: 'For it is a matter of common knowledge that in the usual conduct of the passenger business it often becomes necessary for those not passengers to go upon cars to assist incoming as well as outgoing passengers, and that a practice has grown up in response to this necessity. While it perhaps arose out of a consideration for the security and convenience of the traveler, it has proven beneficial to carriers, and now prevails in this state, and...