On appeal from Superior Court, Appellate Division, whose opinion is reported in 11 N.J. Super. 427.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Burling and Ackerson. For reversal -- Justices Case, Oliphant and Wachenfeld. The opinion of the court was delivered by Burling, J.
[7 NJ Page 186] This is a civil action which sounded in tort and the gravamen of which was the alleged actionable negligence of the defendant. The plaintiff Dora Miller alleged she was a passenger upon a bus which was operated by the defendant as a common carrier in the City of Newark in this
State. She alleged that the defendant failed to perform its duty in the operation of a crowded bus and the proximate result thereof was the injuries sustained by her.
The appeal is from a judgment of the Appellate Division of the Superior Court reversing a judgment of the Law Division of the Superior Court, Essex County, entered as a result of the granting of defendant's motion for dismissal made at the close of plaintiff's case. The right of appeal to this court arose from a dissent in the Appellate Division of the Superior Court. N.J. Constitution, 1947, art. VI, § V, par. 1 (b).
The question involved in this appeal is whether the evidence and reasonable inferences to be drawn therefrom spell a prima facie case of negligence on the part of the defendant which proximately caused the injuries sustained by the plaintiff. The principles of law involved in the determination of this matter are not novel.
The first of these principles is that a motion for the involuntary dismissal of an action under our present practice, Rule 3:41-2, is comparable to a motion for an involuntary nonsuit under our former practice, in that it admits the truth of the plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom which is favorable to the plaintiff but denies its sufficiency in law. The second principle is that a common carrier of passengers is under a duty to exercise a high degree of care in transportation of its passengers. Although it is recognized that the overcrowding of the transporting vehicle is not negligence per se, the carrier's duty is to exercise a degree of care for the passengers' safety which is commensurate with the risk of danger likely to arise from crowding which reasonable foresight should anticipate.
The duty has been defined in Hansen v. North Jersey Street Ry. Co., 64 N.J.L. 686 (E. & A. 1900) at pages 696, 697, as follows:
"Common carriers habitually transport persons of every degree of bodily health and vigor, including the young and the aged and infirm
of both sexes. That exit from a crowded car is likely to be attended, in the case of any passenger, with some difficulty, and in the case of a feeble person, with some risk of injury, is a matter of daily observation and familiar experience. Reasonable foresight should anticipate the possibility of such danger and due caution should provide against it. 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 with passengers, to their own profit and the discomfort of the public, they should be held all the more to a strict and active responsibility to use due care to secure safe entrances and exits. Otherwise, the obligation of a plain duty will be weakened by embarrassments of their own creation."
In Egner v. Hudson and Manhattan R.R. Co., 109 N.J.L. 367, 369 (E. & A. 1932), it was held:
"* * * It is well recognized, that exit from a crowded car is likely to be attended, in the case of any passenger, with some difficulty; and a common carrier is specifically bound to use a high degree of care to protect its passengers, not from crowding per se, but from danger likely to arise from crowding, which reasonable ...