On appeal from the Supreme Court.
For the respondents, Powell & Errickson.
For the appellant, Leroy W. Loder.
The opinion of the court was delivered by
LLOYD, J. The action in this case was brought against the board of education and one Cassady to recover damages for injuries received by plaintiffs in a collision between an automobile in which they were riding and a school bus owned by the board of education and operated by Cassady.
The basis of the action was the negligent operation of the bus by Cassady, and that solely. The defense by both defendants was a denial of negligence, and the board of education set up the further defense that in the operation of the bus it was exercising a public duty in the transportation of school children living remote from the school house. The verdict
of the jury was in favor of the plaintiffs against the board of education and an exoneration of Cassady.
Motions for nonsuit and for the direction of a verdict in favor of the defendant the board of education were made and denied. Upon these rulings the case is presented here for determination.
The inconsistent action of the jury in exonerating the operator of the bus and assessing damages against his employer is not made the basis of appeal, as it might have been (Vaniewsky v. Demarest, 106 N.J.L. 34; affirmed, 107 Id. 389) (probably because the board, if liable, was contented with the amount of the jury's award), and in view of this fact we cannot consider this phase of the case.
Among the reasons urged in support of the motions was one that the school board, a governmental agency of the state, was operating the bus as a public duty under authority of law. The learned trial judge deemed that the authorities presented to him did not justify favorable action and for that reason refused the motions, to which ruling exception was taken.
The transportation of school children received the attention of the legislature as early as 1903 when at its second session of that year as part of the act "to establish a thorough and efficient system of free public schools, and to provide for the maintenance, support and management thereof" (chapter 1, page 5), in section 117 (Pamph. L. 1904, p. 45) it enacted as follows:
"Whenever in any district there shall be children living remote from the school house, the board of education of such district may make rules and contracts for the transportation of such children to and from school. Nothing in this section shall be so construed as to prohibit a board of education from making contracts for the transportation of children to a school in an adjoining district when such children shall be transferred to said district by order of the county superintendent of schools, or when any children shall attend ...