On appeal from the Bayonne District Court.
For the plaintiffs-respondents, Rosario S. Mazzola.
For the defendant-appellant, William A. Barkalow.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment rendered by the court, sitting without a jury, against the defendant-appellant, hereinafter called the defendant, and in favor of the plaintiffs-respondents, hereinafter called the plaintiffs, in the sum of $350 ($300 in favor of the daughter and $50 in favor of the parents). The grounds of appeal are (1) that the court erred in not nonsuiting the plaintiffs at the end of plaintiffs' case; and (2) that the court erred in not rendering a verdict for the defendants and against the plaintiffs of no cause of action.
The proofs submitted disclose the following facts: On September 22d, 1931, plaintiff Agnes Schunck was a passenger on the train of the defendant's railroad company between Red Bank and the terminal of the defendant railroad at Jersey City, New Jersey. After plaintiff had alighted from the train and while walking on the concourse of the said terminal she discovered that she did not have her commutation ticket. She returned to the train upon being advised by a train caller and a conductor of the train that she had plenty of time to go back on the train to look for it. (Testimony of Agnes R. Schunk, direct):
"A. I turned around, and as I turned around, I saw this man -- I believe he was the trainmaster -- Q. Train caller, do you mean? A. Train caller. He was standing there, and I said, 'listen, I lost my commutation ticket. Can I go back to track 20?' He said, 'yes, go ahead. You have time.' I immediately went right back. I passed two pullman. I was in the third car. I saw one of our conductors walking down and he looked rather queer at me, so I said, 'listen, I believe I lost my commutation ticket.' I said, 'I am looking around for it.' He said, 'O.K., plenty of time.' I walked and got in the third car after the two pullman about midway between them. I saw one of the brakemen lean over picking up newspapers. I said, 'listen, I am looking for my commutation ticket. Have you seen it?' He said, 'no.'"
Continuing her testimony, she says: "A. I walked through and I found the ticket in the seat where I sat. I picked up the ticket, took my time -- didn't think there was any hurry, got into the door and placed my hand on the right rail, took one step, and the train moved and threw me off on the back of my head."
The defendants in support of its contention says that the railroad company had no reason to believe or to know that the young lady (plaintiff) had returned to the train, and, therefore, the only duty it owed her was to refrain from willful or wanton injury. Bernardine v. Erie Railroad Co., 110 N.J.L. 338. The facts in the instant case do not, however,
come within the facts of the Bernardine v. Erie Railroad Co., supra, because in that case the plaintiff boarded the train while at a standstill, not from the station platform provided by the railroad company but from the opposite ...