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Johnson v. Central Railroad Co.

Decided: April 27, 1933.

NEHEMIAH JOHNSON ET AL., PLAINTIFFS-RESPONDENTS,
v.
THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, A CORPORATION, DEFENDANT-APPELLANT; CLIFFORD RULON, PLAINTIFF-RESPONDENT, V. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, A CORPORATION, DEFENDANT-APPELLANT; SUSIE FALKINBURG ET AL., PLAINTIFFS-RESPONDENTS, V. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, A CORPORATION, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the plaintiffs-respondents, David A. Veeder and Howard Ewart.

For the defendant-appellant, William A. Barkalow and De Voe Tomlinson.

Wells

The opinion of the court was delivered by

WELLS, J. These three suits were brought to recover the loss sustained by the plaintiffs as a result of two forest fires alleged to have been communicated from sparks thrown from one or more of the locomotives of the defendant.

The cases were tried together at the Ocean Circuit and resulted in verdicts for the plaintiffs. From the judgments entered thereon the present appeals are taken.

There was no motion for nonsuits, and no motion for directions of verdicts at the close of the plaintiffs' case, so that there are no questions of fact involved.

There are fifteen grounds of appeal, but only eight are relied on.

These are grouped as follows:

1. There was error in the charge of the court (grounds of appeal 13, 14 and 15).

2. The trial court committed error in the admission of certain evidence (grounds of appeal 3, 4, 5, 6 and 9).

In the grounds of appeal (13, 14 and 15), dealing with the charge of the court, certain excerpts are taken from the court's charge, from which it is argued by appellant that the trial court erroneously told the jury that it was the duty of the defendant to employ the most approved safeguards, to prevent the communication of fire from the engines to adjacent property and to install in its locomotives a spark arrester of the most approved type. Appellant says that the duty of the defendant in this regard was simply to install and maintain its engines in good condition, and equip them with a spark arrester of an approved type or design and which is in common use, and that the effect of the erroneous instructions to the jury was to cast upon the defendant a greater burden than the law permits, and that this was prejudicial error.

In a lengthy charge covering fifteen printed pages in the state of the case the court said much about safeguards, spark arresters and the duty of the defendant railroad in regard thereto, and yet at the conclusion of the court's charge the only exception taken by the defendant on this point was, "we also respectfully take exception to your honor's charge

relative to most approved safeguard, what your honor said on that subject."

From a technical standpoint, we need not consider the merits of the grounds of appeal relative to the charge of the court at all.

The exception is futile, as not pointing out the alleged error intended to be reviewed.

This court has repeatedly held that such an exception is without efficacy. Griffin v. James Butler Grocery Co., 108 N.J.L. 92; Doran v. Asbury Park, 91 Id. 651; Thibodeau v. Hamley, 95 Id. 180; Goldfarb v. Phillipsburg Transit Co., 103 Id. 690; McKenna v. Reade, 105 Id. 408.

But apart from this, a reading of the whole charge will disclose that the defendant in its exceptions to the charge of the court has broken up the continuity of thought of the trial court by separating the parts excepted to from the surrounding qualifying matter; and that taken as a whole the court properly instructed the jury, as to the defendant's duty with regard to the installation and maintenance of safeguards and screens or covers in its engines as required by section 56 of the General Railroad law of 1903, as amended by Pamph. L. 1921, p. 786, as construed by this court in Goodman v. Lehigh Valley Railroad Co., 78 N.J.L. 317; 74 A. 519, and the decisions of the Supreme Court. Hoff v. West Jersey Railroad Co., 45 N.J.L. 201; Vallaster v. Atlantic City Railroad Co., 72 Id. 334.

The trial court expressly stated that the defendant would be justified in using an approved spark arrester under evidence showing it to have been in general use and that it was approved, pointing out that opinions would differ as to ...


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