Sullivan v. la Frade, 16.

• Decision Date: 26 June 1936
• Docket Number: No. 16.,16.
• Citation: 185 A. 665
• Parties: SULLIVAN v. LA FRADE et al.
• Court: New Jersey Supreme Court

185 A. 665

SULLIVAN

v. LA FRADE et al.

No. 16.

Supreme Court of New Jersey.

June 26, 1936.

Appeal from Court of Common Pleas, Hudson County.

Action by John L. Sullivan against Lawrence La Frade and another. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

Argued January term, 1936, before BROGAN, C. J, and LLOYD and DONGES, JJ.

Alfred Brenner, of Bayonne, for appellant.

Charles A. Rooney, of Jersey City, for respondents.

LLOYD, Justice.

There was a nonsuit in the court below, and the plaintiff appeals. The action was one to recover damages through a fall alleged to have been due to the negligence of the defendants in closing the door of a bus that he was about to enter and, as alleged in the complaint, propelling the bus "in a forward movement in a jerky, sudden, violent manner while the plaintiff was attempting to board it."

There was no proof that the bus was started forward in a "jerky, sudden and violent manner." It could be inferred from the testimony, however, that plaintiff was one of three men waiting for the bus at a street corner; that the bus stopped, the door opened and the other two men entered. While plaintiff's testimony was somewhat confused as to his own actions and the subsequent movement of the bus, it was open to the jury to find from this and the testimony of another witness that the bus, with the door still open, started forward as the plaintiff was entering it, and that he was thrown to the ground in consequence. From this it was also open to the jury to find that the operation of the bus was negligent in that it was prematurely started. It is as much the duty of a public carrier of passengers to afford reasonable opportunity to board the vehicle being used, as it is its duty to properly operate that vehicle while in motion. In this situation it was not necessary under either the complaint or the proofs to establish that the method of starting was either jerky, sudden, or violent. If it appeared, as we think it might fairly be found that it did, that the bus was "propelled forward" while plaintiff was attempting to board it, the further allegation of the complaint was not essential to prove negligence, and could be disregarded.

The judgment is reversed to the end that a new trial may be had.