On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Case, J. Wachenfeld, J., concurring in result.
Mrs. Shimp, whom we shall call the plaintiff, was injured as she was attempting to leave defendant's train after escorting her mother to a seat therein. Her husband joined in the suit, per quod. Jury verdicts went against the defendant. On appeal, the Appellate Division reversed (11 N.J. Super. 88) upon the ground that the trial court erred in denying defendant's motion for judgment made at the end of the case. We affirm the judgment of reversal but we are not in accord with so much of the reasoning of the Appellate Division as places upon the defendant the duty of exercising ordinary care.
On May 2, 1949, plaintiff went with her 70-year-old mother and her 26-month-old child to the defendant's railroad station in New Brunswick where her mother was to take a train to the latter's home in Connecticut. She bought a ticket for her mother, sat in the waiting room for a little
while, then went to the platform and when the train arrived boarded one of the coaches. As she got on the train there was a fair crowd, some persons ahead of her and some behind. After getting a seat for her mother in about the middle of the car, she walked to the front vestibule to alight. With both arms around her child and without making use of either the right or the left handrail, she was in the act of stepping either from the top step to the second or from the second to the third when the train started with what she calls a severe jerk, as a result of which she fell down the vestibule steps to the station platform and sustained the injuries sued upon.
The proof of the breach upon which plaintiff counts rests solely on the unamplified and uncorroborated statement of the plaintiff that the train in starting gave "a jerk," "a severe jerk," a "sudden lurch." Beyond such implications as there may be in those expressions, there is no proof that the motion was unnecessary or unusual. The mere fact that plaintiff fell by reason of a movement of the train when she was off-balance, in the act of transferring her weight from an upper to a lower step, without making use of the railings on either side, carries little corroborative force. The paucity of proof of irregular train motion is made conspicuous by the impressiveness of defendant's contradictory proofs. The act of the plaintiff in attempting to descend the car steps, at a moment when she must have known the train was near its leaving time, without taking the precaution to steady herself by grasping one of the handrails is difficult to understand, particularly as she was burdened with the carrying of her child, a function which, on boarding the train, she had performed with one arm while she carried her mother's suitcase with the other; and it is equally difficult to understand why, if there was an excessive jolting of the train, the mother, lacking some explanation of her absence, was not present at the trial to give corroborative testimony. However, we are assuming for the purposes of the argument that the plaintiff was injured in the manner, and because of the circumstances, which she relates.
The train was of vestibule construction and consisted of 16 cars, of which the first four following the engine were an express or mail car, two parlor cars and a "diner." The named four cars were followed by 12 passenger coaches. Distributed along the length of those 12 passenger coaches were the conductor and eight trainmen. Plaintiff boarded the train without making known to any employee of the railroad company that she proposed to do so, or that she entered otherwise than as a passenger with a ticket for transportation, or that she was with a person who was aged or needed either help or guidance, or that she intended to alight before the train departed, and when she undertook to leave she did so without the carrier's knowledge. It does not appear that the mother was infirm or what the size or weight of her suitcase was or that she was unable to carry the bag herself. Plaintiff could have gone to an entrance serviced by a trainman and announced that her mother needed assistance if that was the fact. The trainman might have undertaken to give the assistance; he might have consented to the boarding of the train by plaintiff; but in either event a new legal situation would have arisen grounded in notice to the defendant. On plaintiff's behalf it is not denied that there was reasonable opportunity for her to call upon or to give notice to the defendant through its authorized servants; the contention is that there was no obligation upon her to do so. The signal that the train was ready to go had gone forward from one trainman to another and so on to the conductor who was so stationed in the first passenger coach that he could and did view the exterior of the whole train and who, having seen that the platform was clear and having received the relayed signal from the trainmen, gave the engineer the order to start.
A person who accompanies a passenger upon a train for the purpose of assisting that passenger is not a trespasser and is not a passenger. It is said in many of the cases that an escort lawfully upon the train in that capacity may, by making his presence and purpose known to the conductor or other responsible person, become entitled to the exercise by the
carrier of ordinary care toward him and thus become, in a legal sense, superior to a mere licensee whose right is only that the carrier refrain from a willful or wanton act but inferior to a passenger whose entitlement is to the exercise of a high degree of care. Some of the cases and some of the textbook authorities, starting with the statement that a person who comes to a railroad station to assist, or merely accompany, a passenger comes with the tacit invitation of the carrier who owes the duty of exercising at least ordinary care to see that such a person is not injured by reason of deficient stational facilities or approaches thereto, carry that same reasoning and conclusion to a person who, as escort, enters the train to give assistance to a passenger. In our opinion there is a vital distinction between the entering of a station or even the station platform and the entering of a train which is on the point of moving.
Many of the authorities which hold for the "ordinary care" doctrine depend upon further conditions, as that the entry to the train is in conformity with a practice approved or acquiesced in by the carrier, or that in having knowledge of the entry and the character thereof the carrier is presumed to agree that the escort may execute his purpose and that the carrier will hold the train a reasonable time for the accomplishment thereof, or that the carrier has in some way committed itself so that the escort becomes either an express or an implied invitee. None of those conditions are shown to exist in this case. Without undertaking to analyze all of the decisions which have held a carrier to the duty of ordinary care with respect to escorts who enter a train with the plan to alight before the train moves, we remark that the factual incidents therein have usually been different from our own. An illustrative case is Little Rock & Fort Smith Railway Co. v. Lawton, 55 Ark. 428, 15 L.R.A. 434 (Ark. Sup. Ct. ...