Skillen v. W. Jersey & S. R. Co.

• Citation: 115 A. 372
• Decision Date: 14 November 1921
• Docket Number: No. 75.,75.
• Parties: SKILLEN v. WEST JERSEY & S. R. CO.
• Court: United States State Supreme Court (New Jersey)

115 A. 372

SKILLEN

v. WEST JERSEY & S. R. CO.

No. 75.

Court of Errors and Appeals of New Jersey.

Nov. 14, 1921.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by John Skillen against the West Jersey & Seashore Railroad Company. Plaintiff was nonsuited, and he appeals. Reversed, and venire de novo.

Wescott & Weaver, of Camden, for appellant.

Bourgeois & Coulomb, of Atlantic City, for respondent.

TRENCHARD, J. This was an action to recover for personal injuries and was tried at the Camden circuit. The plaintiff was nonsuited, and appeals from the judgment entered thereon.

The plaintiff, a passenger on the railroad of the defendant company, was struck in the eye and injured by a spitball or paper wad which had been thrown by one of a number of schoolboys who were also passengers on the train. This wad was thrown or snapped by means of a rubber band. Apparently a number of the pupils from the high school at Woodbury were in the habit of indulging in this sport for their own amusement and without regard for the safety of other passengers. The case as originally tried resulted in a verdict for the plaintiff. On a rule to show cause that verdict was set aside by the Supreme Court in an opinion in which it was pointed out that, assuming these occurrences were so frequent as to charge knowledge thereof upon the railroad company, the evidence showed, so far as it bore upon this point, that "the railroad's employees stopped the play whenever it was seen." The case was sent back to be retried, and the trial judge nonsuited the plaintiff, saying that he had difficulty in understanding just what the Supreme Court meant by its opinion, but that he was bound to follow what was there decided, and, as he understood it, the case then presented was substantially identical with that which was presented at the first trial.

We are of the opinion that the nonsuit cannot be sustained. The difficulty, as we see it, arose from the failure of the learned trial judge to recognize the difference between the case made at that trial and that dealt with in the Supreme Court. To us the distinction between the two cases is quite apparent in the first case, as the Supreme Court said, "so far as appears the railroad employees stopped the play whenever it was seen," while on the present trial there was considerable evidence that this was not so. One of the boys testified that he took part in this amusement, that he shot these wads in the presence of trainmen, and...