Trenton Passenger Ry. Co., Consol. v. Cooper

• Decision Date: 28 June 1897
• Citation: 37 A. 730,60 N.J.L. 219
• Parties: TRENTON PASSENGER RY. CO., CONSOLIDATED, v. COOPER. SAME v. BENNETT.
• Court: New Jersey Supreme Court

37 A. 730

60 N.J.L. 219

TRENTON PASSENGER RY. CO., CONSOLIDATED,

v. COOPER.

SAME

v. BENNETT.

Court of Errors and Appeals of New Jersey.

June 28, 1897.

(Syllabus by the Court.)

Error to supreme court, Mercer circuit; before Justice Gummere.

Action by Charles S. Cooper against the Trenton Passenger Railway Company, Consolidated, and by Samuel M. Bennett against the same defendant. Judgment for plaintiffs, and defendant brings error. Affirmed.

James Buchanan, for plaintiff in error.

G. D. W. Vroom and J. H. Backes, for defendants in error.

COLLINS, J. These two causes were argued together upon identical bills of exception and assignments of error, the original actions having been tried together in the Mercer circuit. The actions were based upon alleged negligence in the lawful operation by means of electricity of a street railway in the city of Trenton. In such operation an electric current was conducted through rails laid on the street, the ends of the rails being fastened together with metallic ties by a process called in the declaration and testimony "bonding." The negligence averred was in insufficient or defective bonding, permitting the escape of electricity. In one of the actions the result averred was injury to a valuable horse owned and being driven by the plaintiff Cooper, and in the other personal injury to the plaintiff Bennett, who was Cooper's hostler and was riding with him. The horse ran away, and both men were thrown from the carriage. The plaintiffs recovered damages, and the judgments have been removed by writs of error to this court.

Error is first assigned upon refusal to nonsuit. The contention is that, as the averments of negligence were limited to the bonding of the rails, the plaintiffs were obliged to point out and establish some particular defect or insufficiency in such bonding. I do not assent to this view. It would have been sufficient to aver that electricity was, through negligence, permitted to escape from the rails; but, as it appeared in the case that such escape was only possible at the ends of the rails, it was a necessary conclusion that, if it occurred, it must have been due to insufficient or defective bonding. It must be assumed that with proper and sufficient bonds the rails would have carried a current of electricity with safety to horses stepping upon them. Otherwise the operation of the railway in a public street by means of such a current passing through its rails was ipso facto a nuisance. No legislation has authorized such an infringement on the rights of the public in a highway. If, therefore, electricity did escape from the rails, that fact was presumptive proof of negligence. Tire case comes clearly within the bounds set by this court for the right of a plaintiff to say, "Res ipsa loquitur." Bahr v. Lombard, 53 X. J. Law, 233, 21 Atl. 190, and 23 Atl. 167. Of course, proof of a latent defect or of a break in a bond, of which the managers of the railway could not with due diligence have learned, might rebut the presumption of negligence, but no such proof appeared in the plaintiff's case. Assuming that there was proof tending to show that electricity did escape from the company's rails and affect the horse, it was the duty of the trial judge to require a defense. There was proof sufficient to go to the jury of such escape and shock. The horse, previously docile, and accustomed to the city streets, was being driven across the railway track. Immediately after stepping on a rail, he stopped, shook, quivered, and then plunged forward, and ran so violently as to overcome all efforts to restrain him. A subsequent examination by a veterinary surgeon revealed symptoms of shock by electricity. The motion to nonsuit was properly denied, and, as no conclusive rebuttal of such presumption of negligence was established by the defense, there was no support for the renewal...