Freund, Proctor and Rogers. The opinion of the court was delivered by Freund, S.j.a.d. Proctor, J.A.D. (dissenting).
The plaintiff, Dora Miller, brought suit to recover for personal injuries sustained while alighting from one of the defendant's buses, in which she was a passenger. From a judgment of dismissal entered at the close of the plaintiffs' case, this appeal was taken.
The evidence shows that Mrs. Miller, her daughter and 2 1/2-year-old grandson boarded the bus of the defendant and obtained seats without difficulty. The daughter was pregnant and Mrs. Miller was accompanying her to the doctor and dentist. When the bus reached their destination, it was "very crowded;" "all the seats and all the aisle were filled;" "it was fully packed, the front and back, every place." Mrs. Miller testified: "Well, I tried my best to get through and while I was trying to get myself through everybody was shoving to try to make room for me because there was no room, and as I got to the step they just pushed me and I fell down to the street." She asked the people a few times to "please stop pushing," but the driver did not say anything to them.
The plaintiff's daughter testified:
"Q. How did your mother get out if it was crowded?
"A. Well, the same way I got out. Pushed out and squeezed out. The crowd just pushed us out. I was pregnant at the time and I had my son and I pleaded with them to be careful.
"Q. Pleaded with whom? A. With the crowd, but they were just trying to be helpful, but it was very crowded.
"Q. Trying to be helpful by doing what? A. By making room for us to get through. I couldn't even reach the coin box because the passengers were standing over the box and I wasn't within distance of them and someone took the 10c and they deposited it for me in the coin box. I couldn't see the bus driver either because he was completely covered."
Clearly, from the testimony it may be inferred that if the witness could not see the bus driver because of the crowd, he could not see her, nor the exit by which she and her mother were alighting. Moreover, Mrs. Miller testified that when she fell, a passenger stepped down from the bus to help her, but had to run "after the bus to get it and the bus went on." It would thus appear that the driver was not able to see what had happened, which would bespeak such overcrowding that danger might likely arise, which foresight could have anticipated. Rivers v. Pennsylvania R.R. Co. , 83 N.J.L. 513 (E. & A. 1912); Davis v. Public Service Coordinated Transport , 113 N.J.L. 427 (E. & A. 1934).
Two familiar principles apply: that a common carrier of passengers is under the duty to exercise a high degree of care, Davis v. Public Service Coordinated Transport, supra , and that on a motion for dismissal, the court must take as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor, McKinney v. Public Service Interstate Transport Co. , 4 N.J. 229, 243 (1950).
In Hansen v. North Jersey Street Railway Co. , 64 N.J.L. 686 (1900), the Court of Errors and Appeals held:
"A common carrier is bound to take a high degree of care of its passengers. This general duty includes a specific responsibility as to the entrances and exits provided for its vehicles. * * * The defendant was, therefore, bound specifically to use a high degree of care to protect the plaintiff, not indeed from crowding per se , but from danger likely to arise from crowding. Considerations of public policy strengthen this conclusion. If common carriers are to be allowed to cram their cars ...