On appeal from the Hudson County Circuit Court.
For the appellant, Collins & Corbin (Edward A. Markley and Charles W. Broadhurst, of counsel).
For the appellees, Bernard German (Thomas F. Doyle, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The single question argued and requiring decision is whether, as appellant claims, the trial judge erred in refusing to grant its motion to direct a verdict in its favor on the ground that there was no proof of any negligence on its part which was the proximate cause of the plaintiffs' injuries.
The proofs which give rise to the stated question disclose that plaintiff Flora Nazarro resides in Jersey City, New Jersey, and works in New York City, New York. She was a regular commuter between the two points. On January 19th, 1938, about four-forty-five P.M., after having paid the required fare at defendant's Cortland street station, New York City, she went to the platform to take a train to Journal Square, Jersey City. The regular schedule of trains was somewhat delayed and the platform became extremely overcrowded with passengers. As the proper train arrived and the doors thereof were opened for passengers to enter therein, plaintiff was pushed through the door of the train as a result of which she fell and sustained injuries for which she brought suit, her husband joining his action for damages per quod.
The cause was submitted to the jury with a very comprehensive, fair and accurate charge. The jury returned a verdict of $2,000 in favor of the wife and a verdict of $636 in favor of the husband, against defendant. It is the judgment, based on the verdict so returned, which defendant here urges should, for the reason first stated, be reversed. We fail to perceive any merit to appellant's argument.
At the outset we mark the fact that by concession of counsel
for the respective parties this case was tried upon the theory that "the common law standard of duty [under the circumstances exhibited] in the State of New York was the same as the common law standard of duty in the State of New Jersey." The theory of the suit, so adopted and pursued, is binding on the parties here. Lastowski v. Lawnicki, 115 N.J.L. 230, 234; 179 A. 266; Saum v. Proudfit, 122 N.J.L. 96; 4 A.2d 35.
In Thurber v. Skouras Theatres Corp., 112 N.J.L. 385, 170 A. 863, the Supreme Court held that a mere crowded condition in itself did not constitute actionable negligence. That holding, however, expressly pointed out the class of cases in which the injurious consequences of failure to control crowds may create liability. Hansen v. Northern Jersey Street Railway Co., 64 N.J.L. 686; 46 A. 718; Sandler v. Hudson and Manhattan Railroad Co., 8 N.J. Mis. R. 537; 151 A. 99; Egner v. Hudson and Manhattan Railroad Co., 109 N.J.L. 367; 162 A. 554. These cases, as their titles indicate, are between passengers and carriers. In such cases liability, if any, is predicated not on a breach of duty by overcrowding but rather on a breach of duty to use care to avoid the dangers likely to arise therefrom at entrances and exits of carrier's cars. Thus, in the Hansen case, our Court of Errors and Appeals imposed the duty upon a carrier to protect its passengers from foreseeable dangers. Amplifying that holding the court said (at p. 701): "This does not mean that the accident must be foreknown, or that exactly such an occurrence was expected or apprehended, but rather, more generally, that its characteristics must be such that it can be classified among events which, sooner or later, in the absence of due care, were likely to happen, and which due care would prevent." In imposing that duty the court held that crowding per se did not impose liability but dangers likely to arise from crowding were foreseeable dangers and it was therefore the duty of the carrier to protect its passengers against such dangers.
The case of Seckler v. Pennsylvania Railroad Co., 113 N.J.L. 299; 174 A. 501 (plaintiff was about to enter station doorway which was ...