Tarnow v. Hudson and Manhattan Railroad Company, A Corp.

• Decision Date: 10 August 1938
• Citation: Tarnow v. Hudson and Manhattan Railroad Company, A Corp., 1 A.2d 73, 120 N.J.L. 505 (N.J. 1938)
• Docket Number: 417
• Court: New Jersey Supreme Court
• Parties: ROSE R. TARNOW, PLAINTIFF-RESPONDENT, v. HUDSON AND MANHATTAN RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT

1 A.2d 73

120 N.J.L. 505

TARNOW

v. HUDSON & MANHATTAN R. CO.

No. 417.

Supreme Court of New Jersey.

Aug. 10, 1938.

Syllabus by the Court.

1. Under the evidence in this cause, the Jury were entitled to find that the sudden closing of the electrically operated door of the railway car while a passenger was alighting, so that the passenger was caught in the doorway, was an act of negligence on the part of defendant's servant.

2. Where, in such a situation, the plaintiff, endeavoring to help the passenger so caught, was injured as a result of the sudden reopening of the door, the jury were entitled under the evidence to find the existence of an unbroken chain of causation between the closing of the door and the injury to the plaintiff.

3. As a general rule, contributory negligence is not to be imputed as a court question to one who exposes himself to danger of injury in order to rescue another from imminent peril.

4. The well settled rule is that requests to charge should be preferred in writing, and generally at or before the close of the evidence, and before the beginning of the argument.

5. The statute of 1911 (P.L. p. 220, E.S. 1937, 2:92-1) permitting the questioning of a juror for certain purposes in civil cases, before he is sworn, and without previous challenge for cause, held, not error for the trial judge to refuse a mistrial when the jury came in to render a verdict, because a member of the jury then appeared to be somewhat deaf.

Appeal from Second District Court of Kearny.

Action by Rose R. Tarnow against the Hudson & Manhattan Railroad Company for injuries sustained while leaving defendant's train. From a judgment in favor of plaintiff, the defendant appeals.

Affirmed.

Argued May term, 1938, before TRENCHARD, PARKER, and PERSKIE, JJ.

Collins & Corbin, of Jersey City (Edward A. Markley and John F. Leonard, both of Jersey City, of counsel), for appellant.

William L. Greenbaum, of Newark, for respondent.

PARKER, Justice.

The case for the plaintiff was that she and a woman friend were passengers on a train of the defendant bound from Journal Square in Jersey City to the Hudson Terminal in New York, at which point all New York passengers are discharged on one side of the train, and passengers for New Jersey are admitted on the other. The doors are sliding doors, electrically operated by the conductor or guard. Plaintiff and her friend were the last two to leave the car. Plaintiff safely stepped on the platform into a crowd of passengers, her companion behind her was just passing through the door when it suddenly closed with her body only partly through it. She screamed, plaintiff turned at once to help her, and as she did so the door was suddenly opened, and the friend, Miss Kravetsky, fell toward plaintiff and her elbow struck plaintiff's left breast, causing the injuries for which she sued the defendant company. Defendant demanded a jury, which was impaneled and sworn, to the satisfaction of both parties so far as appears in the case; and a verdict of $500 was returned for plaintiff, resulting in a judgment from which this appeal is taken.

The first principal ground of reversal is that there was error in refusing to nonsuit, and this for five reasons stated in the brief. Of these the first three are: (a) No proof of negligence as alleged in the state of demand, (b) no proof of negligence that was the proximate cause of the injury, and in connection with this (e) that the injury was caused by the intervening act of a third person, which amounts to much the same thing.

We consider that on the evidence the jury were plainly entitled to find that it was an act of negligence for the defendant's servant to close the door while a passenger was passing through it, and that this set in motion a chain of causation which led directly to the plaintiffs injury without any intervening negligence of other parties. Kuhn v. Jewett, 32 N.J.Eq. 647; Delaware, L. & W. R. Co. v. Salmon, 39 N.J.L. 299, 23 Am.Rep. 214; Pyers v. Tiers, 89 N.J.L. 520, 99 A. 130. We conclude that the nonsuit was properly denied. We do not understand that it is claimed that Miss Kravetsky committed any act of negligence causing injury to the plaintiff, but if that claim is made, the question was clearly for "the jury.

Grounds (c) and (d) are that plaintiff was guilty of contributory negligence, and that she assumed the risk. At best it was for the jury to say whether she assumed the risk of Miss Kravetsky falling against her, and the general rule seems to be well settled that contributory negligence is not to be imputed as a court question, to one' who exposes himself to danger of injury in order to rescue another from imminent peril. 45 C.J. 966; 20 R.C.L. 131; Wagner v. International R. Co., 232 N.Y. 176, 133 N.E. 437. We repeat that the nonsuit was rightly denied; and the same considerations apply to the motion to direct a verdict.

The next section of the brief for appellant relates to rulings on the admission of evidence.

(a) Defendant's train man, identified by testimony as the one that caused the door to close, testified for defendant that no passenger on his train was caught in a door; and went on to say that after the company investigator came to interrogate him about plaintiff's claim he remembered two young ladies being the last passengers to get off the train and that "they were carrying on, I guess in a foolish prank, I would say, and they got off the train and after they got off the train I closed the doors." After giving this testimony he was asked by defendant's counsel: "Q. What are your duties relative to an accident, Mr. Wagner?" This was objected to and excluded, and the exclusion is claimed to be error, on the theory that if he had been allowed to say that his duty was to report any accident (and, as he did say, that he had made no report) this would go to show that no accident had occurred. We need not pass on the point, because assuming technical error, it was harmless, as the witness repeatedly testified that he made no statement; that there was no accident; there was no accident to make a statement on; the clear inference being that if there had been an accident there would have been a statement; but no accident having happened, no statement was made.

(b) Defendant's investigator testified that he had interrogated the trainmen Wagner about the claim, and noted down what he said, in writing up his report. This last was in reply to plaintiff's attorney, who made the witness his own for the nonce. Defendant's attorney then asked: "Q. And did Mr. Wagner tell you that he didn't have an accident?" This was objected to and excluded. It is now urged that it was proper cross examination. However, it was clearly hearsay, and therefore properly excluded.

The next point is that the court erroneously refused to permit defendant's counsel to submit a request to charge. As counsel for plaintiff was summing up, there was a good deal of interruption from counsel for the appellant, and a colloquy with the court, much of which is reproduced in the stenographic transcript. Plaintiff's counsel appears to have undertaken to discuss the law in his address to the jury, and was told by the court that the latter would take care of that. Then in the course of the summing up by plaintiff's counsel, counsel for the defendant stated to the court that "he had a request to make." The court replied that he was too late. Counsel then said, "It just came to my attention. Will your Honor, in view of the fact that I have a record here, permit me to make my request at this time? I am sorry that I have to do this. I take an exception to your Honor's ruling refusing to permit me to make the request pertaining to counsel's remarks." The court allowed the exception, and counsel for plaintiff continued his summation.

The argument now seems to be that it was error for the court to...