Summary
In Meelhein v. Public Service Co-Ordinated Transport, 121 N.J.L. 163, 1 A.2d 418, a non-suit was entered on the defendant's motion and the correctness of that ruling was under review.
Summary of this case from Cleveland v. Danville, Etc., Co.Opinion
Submitted May 27, 1938 —
Decided September 16, 1938.
1. While a common carrier is under a duty to use a high degree of care for the safety of its passengers and of providing a reasonably safe place for them to alight, the stopping of a motor bus on a steep grade, from twelve to twenty inches from the curbing, without more, is not a violation of this duty owing to passengers in the bus.
2. The female plaintiff, accompanied by her husband, was a passenger in a motor bus of defendant. The bus stopped on a street with a steep grade, about twelve to twenty inches from the curb, and the husband alighted safely, but his wife in so doing fell and was injured. At the time of the accident, she was pregnant, and on the trial of an action for damages resulting from the fall it was contended that defendant owed a greater degree of care to her than to an ordinary person because of her condition. There was no testimony disclosing actual knowledge by defendant or its servants of plaintiff's condition, or such facts as might raise the question as to whether the driver should have known thereof by reason of common knowledge and observation. Held, therefore, that the court properly granted a nonsuit to defendant, since there was no inference of negligence on its part which could be drawn from the proofs.
On appeal from the Supreme Court.
For the appellants, Huyler E. Romond.
For the respondents, Henry H. Fryling ( William F. Vosseler, of counsel).
This case was tried before the Middlesex Circuit of the Supreme Court, and at the close of the plaintiffs' case a nonsuit was entered on motion of the defendant, and the correctness of said ruling is the subject of this appeal.
The plaintiffs, at the trial below, had the burden of the affirmative ( Bien v. Unger et al., 64 N.J.L. 596; McGilvery v. Newark Electric Light and Power, 63 Id. 591), and they had to establish facts from which the alleged negligence of the defendant may be reasonably inferred. Alvina v. Public Service Railway Co., 97 Id. 526. They attempted to support the burden by proving that the driver of the defendant's motor bus stopped said bus on Hall avenue, that is, on a steep grade, and at a distance of twelve to twenty inches from the curbing. Mr. Meelhein alighted first and safely, and Mrs. Meelhein who was pregnant at the time, and had been so for seven and one-half months, fell to the street, while alighting, and sustained injuries.
The defendant was under the duty of using "a high degree of care" for the safety of its passengers ( Whelan v. Consolidated Traction Co., 61 N.J.L. 606; Spalt v. Eaton, 118 Id. 330, and Wall v. G.R. Wood, Inc., 119 Id. 442 ), and of providing a reasonably safe place for them to alight. Pabst et al. v. Public Service Railway Co., 104 Id. 537.
It is, in addition to the foregoing, contended by the plaintiffs that the defendant owed a greater degree of care to Mrs. Meelhein than the ordinary person, because she was under a physical handicap, but an examination of the testimony fails to disclose knowledge in the defendant of said physical handicap. At its best, the evidence in this regard is a statement at the trial, of pregnancy at the time of accident, without showing either actual knowledge in the defendant, through its servants, agents and employes, or such facts as might raise a question as to whether the driver should not have known the alleged existing condition by reason of common knowledge and observation.
Therefore, taking as true the stopping of a common carrier's motor bus on a steep grade, and from twelve to twenty inches from the curbing, without more, and giving thereto the benefit of all legitimate inferences deductible therefrom ( Jones v. Public Service Railway Co., 86 N.J.L. 646; Fox v. Great Atlantic, c., Co., 84 Id. 726 ), we must determine whether or not same violated the defendant's duty of using a high degree of care for the safety of the plaintiffs, and of providing a reasonably safe place for them to alight, and we conclude that such proof standing alone, is insufficient to impose upon the defendant the burden of going forward, and therefore, the ruling of the trial court is affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 16.
For reversal — None.