On appeal from the Supreme Court, whose per curiam is printed in 7 N.J. Mis. R. 637.
For the appellant, James P. Mylod.
For the respondent, George S. Hobart.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This is an appeal from a judgment of the Supreme Court reversing a judgment of the Circuit Court in favor of the plaintiff. The judgment so reversed was the result of a second trial of the issue. The first trial brought appellant-plaintiff a verdict, and a judgment
thereon, which upon appeal was reversed by the Supreme Court. The proofs produced at the first trial are not before us nor were they before the judge before whom the cause was tried at Circuit the second time and such judge was not the one presiding at the first trial.
The proofs upon the second trial present the following situation:
The plaintiff below was a passenger on a train of the defendant, and was traveling from Arlington to Bloomfield, arriving at the latter place sometime after five o'clock at night. This was on February 12th, 1923. There was some snow upon the ground and it was somewhat foggy and hazy, and although not dark it was not perfectly light. The plaintiff was riding in the smoking car, being the first car next after the locomotive, in a train consisting of five cars. It was not the train that the plaintiff was accustomed to travel on from his place of work in Arlington to his home in Bloomfield. It being a holiday the regular train was not running; the one upon which he was traveling reaching Bloomfield somewhat later than his usual train and was a longer train, that it contained a greater number of cars. The car in which he was was crowded, all seats being occupied, and passengers standing in the aisle. As the train reached Bloomfield and stopped, plaintiff proceeded to the forward end of the car in which he was riding, other passengers preceding him, for the purpose of alighting. Ordinarily he should have alighted from the right-hand side, which he was about to do when he discovered that the end of the car was upon a bridge over a canal and that at the steps of the car on that side there was a precipitous decline of some twenty feet to the water of the canal below. Upon finding this condition, and apparently realizing the danger of attempting to alight from this side, he turned to leave by the left-hand side where other passengers had preceded him and alighted and he alighted upon wooden planking upon the bridge between two sets of tracks. Almost immediately that he reached this planked space he was struck by a train of the defendant company, coming into the station from the direction opposite to that of the train
upon which he had been, and he was injured. There was a station platform upon the right-hand side of the train upon which plaintiff was a passenger and this seems to have extended up to within about seventy-five feet of the canal bridge. The station proper, at Bloomfield, was upon the opposite side, or to the left of the train bringing plaintiff into Bloomfield. From the station to the platform first referred to there was a planked way for the purpose of bringing baggage trucks across the tracks, of which there were two sets, and the balance of the space between such tracks was loose, stone ballast, except for the planking upon the canal bridge. There was no fence or other structure between the tracks to prevent passengers from crossing. Plaintiff also secured the introduction in evidence of rules of the defendant respecting the running of trains into its stations when another train was standing therein discharging and receiving passengers.
This was the result of the proofs presented by the plaintiff as bearing upon the situation and acts of both parties at the time he closed his case when a motion for nonsuit was made by the defendant upon the following grounds: "That the plaintiff has not proved that there was any invitation extended by the railroad company for him to alight at the time and place he attempted to alight, and therefore he took the risk of that voluntary action upon himself. That there is absolutely no evidence of negligence upon the part of the railroad company as pleaded in the complaint. That the plaintiff was guilty of contributory negligence."
This motion being denied by the trial court, and exception being lodged against such ruling, it was urged in the Supreme Court as a ground for reversal and that court finding it to constitute error made it one ...