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Cicero v. Nelson Transportation Co.

Decided: February 2, 1943.

ANTHONY CICERO AND ARTHUR LEE, PLAINTIFFS-RESPONDENTS,
v.
NELSON TRANSPORTATION CO., INC., DEFENDANT-APPELLANT; GEORGE FENTY, AMELIO SANTORO AND WALTER EGBER, PLAINTIFFS-RESPONDENTS, V. NELSON TRANSPORTATION CO., INC., DEFENDANT-APPELLANT



On appeals from judgments of the District Court of the City of Hoboken.

For the appellant, Archie E. Shilling (Louis Rubenstein, of counsel).

For the respondents, Stephen Mongiello.

Before Justices Bodine, Heher and Perskie.

Heher

The opinion of the court was delivered by

HEHER, J. These are actions in tort for negligence in the management of a ferry service operated by defendant over the river Kill von Kull between Bayonne and Staten Island. One of its termini in Bayonne was a part of the water front premises of the Marine Maintenance Corporation. The dock at this point consisted of a pier and float, linked together by chains. A gangplank descending from the pier to the float constituted the means of ingress and egress to and from the ferry boat docked alongside the float. Defendant was licensed by the federal government to carry passengers for hire; but its service was in fact limited to the carriage of employees of the industries located at Constable Hook, and others having business relations with them, for hire paid by the passengers themselves.

Plaintiffs were employees of the Marine Corporation. As they were in the act of boarding one of defendant's ferry boats -- described as a motor launch -- for conveyance to their homes on Staten Island, the gangplank "broke near the top" and "collapsed," and they were thrown into the river and injured. The District Court Judge resolved the issues in their favor; and the defendant appeals from the consequent judgments.

The first point made is that defendant was not a common carrier and "owed no duty to the plaintiffs with respect to the gangplank."

Defendant was the operator of a public conveyance, limited, however, to the transportation of those having business relations with the plants in the area mentioned. But it does not matter whether it was a common or a private carrier. It owed to its passengers for hire the duty of such care as a reasonably prudent person would exercise in the provision and maintenance of a safe and adequate means of ingress and egress to and from its boats. It was not an insurer of the safety of its passengers; but it was bound to exercise care

commensurate with the risk of danger attending the entry and exit of passengers into and from its boats. And this was certainly its duty with respect to the maintenance of a gangplank devoted to such use, even though the dock itself was upon the premises of the Marine Corporation and under its control, subject to defendant's user. It extended to plaintiffs an invitation to use this means in boarding the boat, and the duty of reasonable care was an incident of the invitation. As respects this obligation, it is of no significance that the pier was owned by the Marine Corporation. It was the place of ingress and egress supplied by defendant to plaintiffs; and it owed to them the duty of reasonable care to render it safe for such use. Yetter v. Gloucester Ferry Co., 76 N.J.L. 249. The operator of a ferry is under the duty of reasonable care for the safety of a walkway outside its ferry house provided for the use of its passengers. Exton v. Central Railroad Co., 62 Id. 7; affirmed, 63 Id. 356. This principle was reiterated by the Court of Errors and Appeals in a case involving injuries sustained by a passenger on a way under a ferry shed leading to a street, which, though a part of the street, was "inside of the sign of the ferry company labeled 'entrance,' and used by the passengers of the company in going to and from the ferry house, especially when it is the only way provided or usable for the purpose." Fortein v. Delaware, Lackawanna and Western Railroad Co., 90 Id. 137.

It is also contended that there was no proof of negligence. This point, too, is untenable.

The maxim res ipsa loquitur is applicable. This rule, as applied to actions of negligence, is founded on the hypotheses that the instrumentality producing the injury was under the management or control of the defendant, and that, in the general experience of mankind, the event producing the injury does not happen unless the person in control has failed to exercise due care. In such circumstances, negligence may reasonably be inferred, and therefore the occurrence itself affords prima facie evidence of a want of due care. The maxim represents an exception to the general rule that the onus of proof ...


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