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Tarnow v. Hudson and Manhattan Railroad Co.

Decided: August 10, 1938.

ROSE R. TARNOW, PLAINTIFF-RESPONDENT,
v.
HUDSON AND MANHATTAN RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT



On defendant's appeal from the district court.

For the appellant, Collins & Corbin (Edward A. Markley and John F. Leonard, of counsel).

For the respondent, William L. Greenbaum.

Before Justices Trenchard, Parker and Perskie.

Parker

The opinion of the court was delivered by

PARKER, J. The case for the plaintiff was that she and a woman friend were passengers on a train of the defendant bound from Journal Square in Jersey City to the Hudson Terminal in New York, at which point all New York passengers are discharged on one side of the train, and passengers for New Jersey are admitted on the other. The doors are sliding doors, electrically operated by the conductor or guard. Plaintiff and her friend were the last two to leave the car. Plaintiff safely stepped on the platform into a crowd of passengers; her companion behind her was just passing through the door when it suddenly closed with her body only partly through it. She screamed, plaintiff turned at once to help her, and as she did so the door was suddenly opened, and the friend, Miss Kravetsky, fell toward plaintiff and her elbow struck plaintiff's left breast, causing the injuries for which she sued the defendant company. Defendant demanded a jury, which was impaneled and sworn, to the satisfaction of both parties so far as appears in the case; and a verdict of $500 was returned for plaintiff, resulting in a judgment from which this appeal is taken.

The first principal ground of reversal is that there was error in refusing to nonsuit, and this for five reasons stated in the brief. Of these the first three are (a) no proof of negligence as alleged in the state of demand, (b) no proof of negligence that was the proximate cause of the injury, and in connection with this (e) that the injury was caused by the intervening act of a third person, which amounts to much the same thing.

We consider that on the evidence the jury were plainly entitled to find that it was an act of negligence for the defendant's servant to close the door while a passenger was passing

through it, and that this set in motion a chain of causation which led directly to the plaintiff's injury without any intervening negligence of other parties. Kuhn v. Jewett, 32 N.J. Eq. 647; Delaware, Lackawanna and Western Railroad Co. v. Salmon, 39 N.J.L. 299; Pyers v. Tiers, 89 Id. 520. We conclude that the nonsuit was properly denied. We do not understand that it is claimed that Miss Kravetsky committed any act of negligence causing injury to the plaintiff, but if that claim is made, the question was clearly for the jury.

Grounds (c) and (d) are that plaintiff was guilty of contributory negligence, and that she assumed the risk. At best it was for the jury to say whether she assumed the risk of Miss Kravetsky falling against her; and the general rule seems to be well settled that contributory negligence is not to be imputed as a court question, to one who exposes himself to danger of injury in order to rescue another from imminent peril. 45 C.J. 966; 20 R.C.L. 131; Wagner v. International Railway Co., 232 N.Y. 176. We repeat that the nonsuit was rightly denied; and the same considerations apply to the motion to direct a verdict.

The next section of the brief for appellant relates to rulings on the admission of evidence.

(a) Defendant's trainman, identified by testimony as the one that caused the door to close, testified for defendant that no passenger on his train was caught in a door; and went on to say that after the company investigator came to interrogate him about plaintiff's claim he remembered two young ladies being the last passengers to get off the train and that "they were carrying on, I guess in a foolish prank, I would say, and they got off the train and after they got off the train I closed the doors." After giving this testimony he was asked by defendant's counsel: " Q. What are your duties relative to an accident, Mr. Wagner?" This was objected to and excluded, and the exclusion is claimed to be error, on the theory that if he had been allowed to say ...


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