Williams v. New Jersey-New York Transit Co., 359.

• Citation: 113 F.2d 649
• Decision Date: 18 July 1940
• Docket Number: No. 359.,359.
• Parties: WILLIAMS v. NEW JERSEY-NEW YORK TRANSIT CO.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

113 F.2d 649 (1940)

WILLIAMS v. NEW JERSEY-NEW YORK TRANSIT CO.

No. 359.

Circuit Court of Appeals, Second Circuit.

July 18, 1940.

Kaye, Scholer, Fierman & Hays, of New York City (James S. Hays and Milton Kunen, both of New York City, of counsel), for appellant.

Breed, Abbott & Morgan, of New York City (Charles H. Tuttle, Thornton Land, Stoddard B. Colby, all of New York City, of counsel), for appellee.

Before L. HAND, CHASE, and PATTERSON, Circuit Judges.

L. HAND, Circuit Judge.

Defendant appeals from a judgment for the plaintiff awarding her damages for personal injuries, suffered while she was a passenger in the defendant's bus. She boarded the bus at Union City, New Jersey, and sat down in the second seat on the right-hand side of the aisle; a fellow passenger was beside her, nearer the window. Shortly after she was seated, he arose from his seat and put a brief case, which he had been holding in his lap, in the baggage rack overhead. After the bus had gone about a mile, this fell down and struck the plaintiff on the right side of her head, causing the injuries for which she sued. The bus had been swerving and twisting so violently that the plaintiff had been several times thrown against her fellow passenger; and a jury might properly have found that this caused the brief case to fall. The rack was made of a row of eight metal bars, half an inch thick, spaced two and one-half inches apart, running lengthwise of the bus, and together making a substantially horizontal shelf extending from the side of the bus inwards towards the aisle. At the inner edge of this shelf was a similar bar, raised above the level of the rest, and between this bar and the inmost of the eight bars was a space of three and one-quarter inches. The rack was supported from the roof by metal struts at its inner edge, which was at a point above the middle of the seat that the plaintiff occupied. At the conclusion the defendant moved for a directed verdict, which the court denied; the sole question of fact which he submitted to the jury was whether it was negligent for the defendant to maintain a baggage rack "in the condition which has been described during the testimony."

Both sides agree that the law of New Jersey measured the defendant's liability, and it is apparent — although the plaintiff disputes it — that the judge was right in leaving nothing to the jury but the construction of the rack. Since, as we have said, the accident happened when the bus had gone only a mile beyond the place where the plaintiff boarded it, even though the other passenger had put the brief case in the rack shortly after she had sat down, the interval was not long enough to charge the defendant with notice that it was stowed negligently, if in fact it was. There was no evidence that the driver actually saw it; nor was the evidence material that the bus swayed violently as it rounded the curves. The plaintiff did not indeed request any addition to the judge's charge. If therefore the plaintiff did not prove that the rack was negligently made, she could not recover. Neither side proved whether there was any standard for the construction of such racks among bus companies. It is true that the defendant offered a certificate that the bus had been inspected by the New York Transit Commission, and conceivably some inference might have been permissible from that that there was a standard to which the rack did not fail to come up; but we could not dismiss the complaint, as we are doing, if the defendant had the duty of proving that a standard for such racks existed; at most we should have to remand the cause for another trial because of the supposedly erroneous exclusion of the certificate. We proceed to an analysis of the New Jersey cases which in our judgment demanded the dismissal of the complaint.

In Traphagen v. Erie Railroad, 73 N.J.L. 759, 64 A. 1072, 1073, 67 A. 753, 9 Ann.Cas. 964, the passenger had caught her heel in the step of a railway car while getting off, and complained that the step was too high. Upon this issue she asked to go to the jury; but the Court of Errors and Appeals said no; because it appeared that there was no accepted standard for the height of steps on railway cars, the proper height of the step must be left to the managers of the roads. Apparently the carrier had there proved — or at least the court so took it — that there was no such standard; for that reason "to permit such a finding would practically substitute the judgment of a jury for the judgment of the railroad managers". We cannot read this in any other sense than that when it affirmatively appears that there is no standard, the jury has no power to set one. In Feil v. West Jersey & Seashore Railroad Company, 77 N.J.L. 502, 72 A. 362, 363, there was a depression of some eight or ten inches in a platform running between two tracks, put there to make easy the transfer of freight from one track to the other. The passenger, crossing this platform from a train upon one track to a train on the other and not observing the depression, stumbled and was hurt. Again, the Court of Errors and Appeals held that because the standard of care demanded was only that of ordinary persons similarly situated, "the adoption of a method of platform construction which accords with that in general use by well-regulated railroad companies, and which is approved by experience" is enough. That might be thought to leave open whether the carrier must not prove that there is a standard to which it does conform; but...