Spalt v. Eaton

Decision Date15 June 1937
Docket NumberNos. 416, and 417.,s. 416, and 417.
Citation192 A. 576,118 N.J.Law 327
PartiesSPALT v. EATON (two cases).
CourtNew Jersey Supreme Court

Appeal from District Court of Jersey City.

Actions by Mary H. Spalt, and by Donald Spalt, her husband, against Cornelius Eaton. From judgments for plaintiffs, defendant appeals.

Affirmed.

Argued January term, 1937, before TRENCHARD, BODINE, and HEHER,

Alan Kraut, of Jersey City, for appellant. Frank A. Boehler, of Jersey City, for respondents.

HEHER, Justice.

Defendant is a common carrier of passengers. The gravamen of the action instituted by Mary H. Spalt is negligence by the operator of one of his buses, whereby she sustained personal injuries. Her husband, Donald, sued per quod. The district court judge, sitting without a jury, found in favor of the plaintiffs; and defendant appeals from the consequent judgments.

Prior to the trial, defendant propounded certain interrogatories to plaintiffs. They were answered in due course. Inquiry was thus made for the names of the physicians claimed to have treated Mary H. for the asserted injuries; and the first insistence is that there was error in permitting the introduction, over defendant's objection, of evidence of medical aid rendered by a physician not so identified in the answer to that particular interrogatory.

The point is not well made. While a defendant in such an action may have, in the form of a bill of particulars, a statement of the expenditures made by the injured plaintiff for medical attention, and, in connection therewith, the names of the physicians who rendered the service (Wolfson v. Mills, 112 N.J.Law, 1, 169 A. 359), it is the settled rule that section 140 of the Practice Act of 1903 (3 Comp. St.1910, p. 4097, § 140) does not permit of the service of interrogatories, after issue joined, directed to the identification of witnesses to be called by the adversary party. The interrogatories authorized by this section may not be used to serve the office of a bill of particulars. They must needs relate to the case of the party propounding them, and cannot be used merely to pry into the case of his adversary. And an interrogatory is required to be so framed that a responsive answer would be relevant and competent evidence for the party proposing it. Watkins v. Cope, 84 N.J.Law, 143, 86 A. 545. The common law, in civil cases, did not require advance notice to the adversary party of the names of witnesses to be produced. Wigmore on Evidence (2d Ed.) §§ 1845, 1856, 1856c. While the modern tendency is to liberalize the practice in this respect, the ancient restriction has not been removed by our statute relating to discovery by interrogatories. They are required to be confined to matters "material to the issue." Moreover, answers to interrogatories, while introducible as evidence, are not conclusive on the party making such answers of the matters of fact embraced therein. Goodman v. Lehigh Valley R. Co., 82 N.J.Law, 450, 81 A. 848.

The next inquiry is whether there was tangible evidence of defendant's guilt of negligent conduct proximately causing the injuries complained of. We think there was.

There was evidence tending to establish the following matters of fact: A passenger under the influence of intoxicating liquor indulged in unseemly language, and refused to obey the bus operator's command, repeated several times, to be seated. Mrs. Spalt testified that his misconduct inspired fear. The operator finally admonished him that, unless the misbehavior ceased, he would be required to eject him from the vehicle, whereupon the offender's brother, also a passenger, made known that he would resist such an effort with force. Thereupon, the driver, in a noticeably angry mood, proceeded to expel the intoxicated passenger. Mrs. Spalt gave evidence that "the driver came out of the seat, and they got into a tussle, and the driver hit him, and the fight started." The brother of the intractable passenger joined in the fray. He testified that when the driver "came through under the rail," his manner indicated an intention to "assault" his brother, and he deemed an assault upon the driver essential for the "protection" of his brother. Mrs. Spalt further testified: "They all started to fight; I was caught in between and I couldn't get back to my seat again and couldn't get out of the bus, and I was thrown against the partition here." While the misbehavior of the first-named passenger began some time before the altercation, the bus operator did not invoke the aid of one of the police officers stationed along the route (the boulevard in the city of Jersey City), although he testified he was under instructions "to stop" in case of disorder, "and have a cop or policeman take" the offender "off the bus." He maintained that he brought the vehicle to a stop, intending to pursue this course, and that, as he was leaving his seat, the disorderly passenger and his brother set upon him before he could call police aid; and that he was guilty of no provocative action. But this conflict in the proofs was a matter peculiarly within the province of the trier of the facts. Of this more hereafter.

There is laid upon the carrier the duty of using a "high degree of care" for the safety of his passengers. Skillen v. West Jersey & Seashore R. Co., 96 N. J.Law, 492, 115 A. 372; Hoff v. Public Service Railway Co., 91 N.J.Law, 641, 103 A. 209, 15 A.L.R. 860; Exton v. Central R. Co., 62 N.J.Law, 7, 42 A. 486, 56 L.R.A. 508, affirmed 63 N.J.Law, 356, 46 A. 1099, 56 L.R.A. 508; Miller v. West Jersey & Seashore R. Co., 71 N.J.Law, 363, 59 A. 13; same case on appeal, 79 N.J.Law, 499, 76 A. 973; Lehberger v. Public Service Railway Co., 79 N.J.Law, 134, 74 A. 272; King v. Steglitz, 111 N.J. Law, 11, 166 A. 146; Schreiber v. Public Service Co-ordinated Transport, 112 N.J. Law, 199, 169 A. 629; Jackson v. Delaware, L. & W. R. Co., 111 N.J.Law, 487 170 A. 22; Seckler v. Pennsylvania R. Co., 113 N.J.Law, 299, 174 A. 501; Davis v. Public Service Co-ordinated Transport, 113 N.J.Law, 427, 174 A. 540; Rivers v. Pennsylvania R. Co., 83 N.J.Law, 513, 83 A. 883; Hansen v. North Jersey Street Ry. Co., 64 N.J.Law, 686, 46 A. 718, 721.

This term does not lend itself to precise legal definition, absolutely resolving every case. It is relative in the sense that the thing to be done to avert injury depends upon the special circumstances; and this ordinarily involves a factual inquiry. It is such degree of care as is commensurate with the risk of harm—such as one exercising a high degree of care, skill, and diligence, directed to the passengers' safety, and consistent with the nature of the carrier's undertaking and the practical operation of the vehicle or mode of conveyance, would under all the circumstances deem prudent to obviate the danger, known or reasonably to be anticipated. The carrier is not an insurer of the passenger's safety. But he is enjoined to shield the passenger from every danger which human care and foresight can reasonably anticipate and prevent, compatible with the nature and needs of the business. If he knew, or had reasonable cause to know, of the likelihood of injury to the passenger, and the danger is preventable by the exercise of due care, so measured, he is answerable for the consequences of his nonconformance to that standard. Our court of last resort has laid down the principle that whether, under the circumstances of a given case, "the degree of care that is reasonable be high or low, it is imposed by law solely upon the...

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  • Case v. St. Louis Public Service Co.
    • United States
    • Court of Appeal of Missouri (US)
    • February 19, 1946
    ...... passenger. Spohn v. The Mo. Pac. Ry. Co., 101 Mo. 417, 14 S.W. 880, s. c., 87 Mo. 74, 80, s. c., 116 Mo. 617,. 22 S.W. 690, s. ...Ry. Co. v. Hinds, 53 Pa. 512, 91 Am. Dec. 224, 227; Spalt v. Eaton, 118 N. J. L. 327, 192 A. 576, 579. (d) The. motorman did ......
  • Genovay v. Fox, A--623
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 16, 1958
    ...law balances the magnitude of the risk of harm against the utility of the actor's conduct, §§ 291, 292, 293. See Spalt v. Eaton, 118 N.J.L. 327, 333, 192 A. 576 (Sup.Ct. 1937), affirmed 119 N.J.L. 343, 196 A. 736 (E. & A.1938); Halpern v. Barbara Holding Corp., 5 N.J.Super. 87, 90, 68 A.2d ......
  • Meyonberg v. Pennsylvania R. Co., 9366.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 19, 1947
    ...upon a common carrier the duty of using a "high degree of care" for the safety of the carrier's passengers. See Spalt v. Eaton, 1937, 118 N.J. L. 327, 330, 192 A. 576, 578, and cases cited therein, affirmed 1938, 199 N.J.L. 343, 196 A. 736; and see Kinsey v. Hudson & Manhattan R. Co., 1943,......
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    ...subject, but we think they are bound to be implied. Other cases in accord with the holding in Smith v. Olsen, supra, are: Spalt v. Eaton, 118 N.J.L. 327, 192 A. 576; Spalt v. Eaton, 119 N.J.L. 343, 196 A. 736; Tighe v. Skillings, 297 Mass. 504, 9 N.E.2d 532; Hodges v. American National Ins.......
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