Whilt v. Pub. Serv. Corp. of N.J.

• Decision Date: 16 November 1908
• Citation: 72 A. 420,76 N.J.L. 729
• Parties: WHILT v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.
• Court: New Jersey Supreme Court

72 A. 420

76 N.J.L. 729

WHILT

v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1908.^†

(Syllabus by the Court.)

Error to Supreme Court.

Action by Albert M. Whilt against the Public Service Corporation of New Jersey. From a judgment for defendant (74 N. J. Law, 141, 64 Atl. 972), plaintiff brings error. Affirmed.

William Early and Carrow & Craft, for plaintiff in error. E. A. Armstrong, for defendant in error.

BERGEN, J. The defendant, as a common carrier, undertook to transport the plaintiff from Merchantville to Westmont on its trolley cars, and in order to carry out this undertaking it was necessary to transfer the plaintiff from one car to another. To accomplish this he was required to leave the first car at Market and Seventh streets, in the city of Camden, and walk along the latter street to Federal street, at which point he would meet another of defendant's trolley cars, on which he expected to be carried to his destination. The plaintiff left the car at Seventh street and immediately started to pass behind It, in order to reach the sidewalk, but so near that he struck a fender which projected from the rear of the car a distance of about four feet, fell into it, and was injured. Whether the fender obstructed a street crossing walk does not appear. All the plaintiff testifies to is that he "rode in the car down to near Seventh street," where he got off; that "I started to walk across the street at the rear of the car, thinking I had a clearer passage." He also testified that he was not certain that the car was in motion when he started to cross the street, but that it was moving at the time he struck the fender. There was evidence from which a jury might properly infer that the usual practice of the defendant was to have the rear fenders fastened up against the end of the car by means of a chain, while at the time the plaintiff started to pass in the rear of the car the fender was down. On this state of facts there was a nonsuit, the legal propriety of which we are required to review.

On a previous trial of this cause there was a verdict for plaintiff, which was set aside by the Supreme Court on rule to show cause, and a new trial ordered (Whilt v. Public Service Corporation, 74 N. J. Law, 141, 64 Atl. 972); and it was there held that the fact that the fender was down, contrary to the usual custom, was not sufficient to justify an inference of negligence; that whether the street railway company should have a fender at one end only, or at both, was a matter of detail in the construction of its cars, which ought to be left to the reasonable judgment of the managers, and, while proof that it was usual to have the fender up would have an important bearing upon the question of the care exercised by the plaintiff, it was not sufficient to justify an inference of negligence on the part of the defendant; that to hold that a change in the method of carrying fenders on a street car justified an inference of negligence would subject the defendant to the peril of being held negligent whenever it made an improvement in the construction of its cars. This conclusion is supported, so far, at least, as it relates to persons not passengers of the company, by Gargan v. West End R. R. Co., 176 Mass. 106, 57 N. E. 217, 49 L. R. A. 421, 79 Am. St. Rep. 298. The case presented on rule to show cause was determined upon the status of the plaintiff as a pedestrian using the highway, and not as a passenger, to whom a higher degree and a different sort of care might be due.

The best-considered cases support the proposition that, when a passenger steps from a street car upon the street, he ordinarily becomes a...