Solomon v. Pub. Serv. Ry. Co., No. 110.

CourtNew Jersey Supreme Court
Writing for the CourtKALISCH, J.
Citation92 A. 942,87 N.J.L. 284
Docket NumberNo. 110.
Decision Date27 January 1915
PartiesSOLOMON et al. v. PUBLIC SERVICE RY. CO.
92 A. 942
87 N.J.L. 284

SOLOMON et al.
v.
PUBLIC SERVICE RY.
CO.

No. 110.

Court of Errors and Appeals of New Jersey.

Jan. 27, 1915.


Appeal to Circuit Court, Hudson County.

Actions by Irving Solomon, by his next friend, Frank Solomon, and by Frank Solomon individually, against the Public Service Railway Company. From a judgment of nonsuit, plaintiffs appeal. Reversed, and venire de novo awarded.

Collins & Corbin and George S. Hobart, all of Jersey City (Robert J. Bain, of Jersey City, of counsel), for appellants.

Edwards & Smith, of Jersey City, for appellee.

KALISCH, J. The appellants, plaintiffs below, appeal from a judgment of nonsuit in favor of the respondent, defendant below, in the Hudson county circuit court.

An action was brought by Irving Solomon, an infant, nine years of age, by his next friend, Frank Solomon, to recover for personal injuries sustained by Irving through being run over by one of the passenger cars of the defendant, operated by it on a public street, in Jersey City, and by Frank Solomon to recover damages for the loss of service and expense sustained by him as the father of Irving.

Irving Solomon, while at play in Pavonia avenue, was called by the motorman of one of the defendant's trolley cars, which was coming westerly along Pavonia avenue, to turn a switch which was a means to let cars coming along Pavonia avenue into Henderson street. The motorman handed a switch iron to Irving for that purpose, and, after the boy had turned the switch, the motorman invited him on the car to ride. Irving accepted and rode as far as Bay street, about nine or ten blocks, where the motorman let him off and told him to wait on the other side of the street until the car made the return trip. When the car, on its return trip, reached Bay street, the motorman jerked his head, which the boy interpreted

92 A. 943

as a motion inviting him to get on the car, which he did. The motorman was facing him at the time and saw him get on. He boarded the front steps of the car on the easterly side of Henderson street and on the southerly side of Bay street, the front vestibule door being open. The boy got on the step with both feet, holding on to the handrail of the car with his right hand, and as he was trying to turn around to sit down on the platform the car gave a jerk and threw him off. He was asked:

"What do you mean by jerk? A. Going fast and then stopped. Q. What's that? A. Starting off fast and stopped."

This was substantially the state of the evidence when the case closed.

Counsel of defendant moved for a nonsuit on several grounds, viz.: That there was no evidence of defendant's negligence; that the boy was a trespasser, or at most a licensee; that the defendant owed no duty to the boy, in that he was not a passenger; that the act of the motorman in inviting him to ride was not within the scope of his employment; and that the boy was guilty of contributory negligence. The trial judge granted the nonsuit upon the distinct ground that the plaintiff Irving was guilty of contributory negligence. This, however, does not, under the settled law of this state, preclude the respondent from having the other grounds urged by it for a nonsuit considered for the purpose of sustaining it, if the conclusion should be reached that the judgment of nonsuit cannot be supported upon the theory adopted by the trial judge. Gillespie v. J. W. Ferguson Co., 78 N. J. Law, 470, 74 Atl. 460; Sadler v. Young, 78 N. J. Law, 594, 597, 75 Atl. 890; Meisel v. Merchants' Natl. Bank, 85 N. J. Law, 253, 88 Atl. 1067; Herrera v. Manhattan Electric Supply Co., 85 N. J. Law, 249, 88 Atl. 1082.

An examination of the evidence relating to the care used by the plaintiff, Irving, in boarding the car, makes it manifest that the ground upon which the trial judge based the judgment of nonsuit is untenable. Irving testified that, at the time he was invited upon the car by the motorman, it was going just a little; "it was like standing still." At any rate, it was going so slowly that Irving grasped the handle bar with his right hand and placed both feet on the step of the car. It further appears that it was...

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9 practice notes
  • Meloon v. Davis, 1558.
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 13, 1923
    ...9 Am.Rep. 11, Brennan v. Fairhaven & W.R. Co., 45 Conn. 284, 29 Am.Rep. 679, Solomon et al. v. Public Service Ry. Co., 87 N.J.Law, 284, 92 A. 942, Ann. Cas. 1917C, 356, cited upon the plaintiff's brief, it does not appear that any statute prohibited the giving of free transportation, and th......
  • Hellstern v. Smelowitz, No. A--437
    • United States
    • New Jersey Superior Court – Appellate Division
    • January 25, 1952
    ...67 A. 753 (Sup.Ct.1906); David v. West Jersey & S.R.R. Co., 84 N.J.L. 685, 87 A. 440 (E. & A. 1913); Solomon v. Public Service Ry. Co., 87 N.J.L. 284, 92 A. 942 (E. & A. 1915). Noticeable in most, if not all, of the decisions in the foregoing cases is the typical expression 'some cases hold......
  • Missouri Pacific Railroad Company v. Kennedy, 278
    • United States
    • Supreme Court of Arkansas
    • April 3, 1922
    ...who voluntarily put themselves in places of danger assume the risk. 86 Ark. 325; 99 Ark. 248; 129 Ark. 257; 128 F. 540; 90 Ill. 586; 87 N.J.L. 284; 141 N.W. 353; 31 S.D. 512. Appellant's instruction No. 4, refused, covered this question. Appellant's refused instruction No. 11 would have tol......
  • Kelliher v. Grier, No. 38.
    • United States
    • United States State Supreme Court (New Jersey)
    • February 4, 1941
    ...64, 108 A. 862; Danbeck v. New Jersey Traction Co., 57 NJ.L. 463, 31 A. 1038, and Solomon v. Public Service Railway Co., 87 NJ.L. 284, 92 A. 942, Ann.Cas. 1917C, The judgment is reversed. For affirmance: None. For reversal: The CHANCELLOR, the CHIEF JUSTICE, Mr. Justices PARKER, CASE, BODIN......
  • Request a trial to view additional results
9 cases
  • Meloon v. Davis, 1558.
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 13, 1923
    ...9 Am.Rep. 11, Brennan v. Fairhaven & W.R. Co., 45 Conn. 284, 29 Am.Rep. 679, Solomon et al. v. Public Service Ry. Co., 87 N.J.Law, 284, 92 A. 942, Ann. Cas. 1917C, 356, cited upon the plaintiff's brief, it does not appear that any statute prohibited the giving of free transportation, and th......
  • Hellstern v. Smelowitz, No. A--437
    • United States
    • New Jersey Superior Court – Appellate Division
    • January 25, 1952
    ...67 A. 753 (Sup.Ct.1906); David v. West Jersey & S.R.R. Co., 84 N.J.L. 685, 87 A. 440 (E. & A. 1913); Solomon v. Public Service Ry. Co., 87 N.J.L. 284, 92 A. 942 (E. & A. 1915). Noticeable in most, if not all, of the decisions in the foregoing cases is the typical expression 'some cases hold......
  • Missouri Pacific Railroad Company v. Kennedy, 278
    • United States
    • Supreme Court of Arkansas
    • April 3, 1922
    ...who voluntarily put themselves in places of danger assume the risk. 86 Ark. 325; 99 Ark. 248; 129 Ark. 257; 128 F. 540; 90 Ill. 586; 87 N.J.L. 284; 141 N.W. 353; 31 S.D. 512. Appellant's instruction No. 4, refused, covered this question. Appellant's refused instruction No. 11 would have tol......
  • Kelliher v. Grier, No. 38.
    • United States
    • United States State Supreme Court (New Jersey)
    • February 4, 1941
    ...64, 108 A. 862; Danbeck v. New Jersey Traction Co., 57 NJ.L. 463, 31 A. 1038, and Solomon v. Public Service Railway Co., 87 NJ.L. 284, 92 A. 942, Ann.Cas. 1917C, The judgment is reversed. For affirmance: None. For reversal: The CHANCELLOR, the CHIEF JUSTICE, Mr. Justices PARKER, CASE, BODIN......
  • Request a trial to view additional results

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