On appeal from Superior Court, Appellate Division, whose opinion is reported in 15 N.J. Super. 305.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Burling, J.
This is a civil action sounding in tort, grounded in the alleged actionable negligence of the defendant, Public Service Coordinated Transport, a New Jersey corporation, in the maintenance of overhead wires charged with electricity as a source of power for transit equipment. The suit was instituted by the plaintiff, John Rapp, in the Law Division of the Hudson County Court and, after a trial to court and jury, terminated in a verdict and judgment in favor of the plaintiff. The defendant's motion for a new trial under Rule 3:59-1 was denied and the defendant appealed to the Superior Court, Appellate Division. The appeal so taken resulted in an affirmance by that court, with a dissent filed by one of the judges who heard the appeal. Under N.J. Const. 1947, art. VI, sec. V, par. 1(b), the defendant appealed to this court from the judgment of affirmance entered in the Superior Court, Appellate Division.
The cause of action arose in this wise. Plaintiff was the owner of a "tractor-trailer" truck, which was being operated by his employee on September 26, 1947, in a southerly direction, along Grove Street in Jersey City, New Jersey, at a locality where that public thoroughfare passes under a trestle of the Pennsylvania Railroad Company at Railroad [9 NJ Page 14] Avenue. As plaintiff's vehicle proceeded to attempt passage under the trestle, it came in contact with highly charged overhead electric wires owned and controlled under the railroad trestle by the defendant for the purpose of furnishing a power supply to electric transit equipment. This contact resulted in a fire which damaged the plaintiff's trailer and the cargo then being hauled therein. The essential features of these facts were stipulated in the pretrial order. The plaintiff instituted this action in the Hudson County Court, Law Division, by summons and complaint filed May 23, 1950, against the Public Service Coordinated Transport and the Public Service Electric and Gas Company, both of which were and are New Jersey corporations, to recover damages to the trailer and cargo resulting from the fire as above stipulated. The complaint contained allegations that the wires aforesaid had been negligently placed, or permitted to remain, under the railroad trestle by either or both the defendants through their agents or servants, and that the placing and permitting of said wires to remain in the position which they occupied on a public street and at a point where they were likely to come in contact with and do damage to vehicles lawfully proceeding along said street constituted a nuisance, and as a proximate result of the wrongful act and nuisance of the defendants, plaintiff's vehicle and cargo were damaged. The action was dismissed as to the Public Service Electric and Gas Company following stipulation filed July 25, 1950. The action thereafter proceeded against Public Service Coordinated Transport (herein referred to as the defendant). The defendant, by answer filed July 26, 1950, raised the defenses of contributory negligence and assumption of risk. In the pretrial order filed November 9, 1950, the issues framed were "that defendant was negligent and maintained a nuisance" and "contributory negligence or assumption of the risk" by plaintiff. At the trial, in the plaintiff's opening statement the gravamen of his suit was stated to be negligence on the part of the defendant "not to have any warning that these wires were lower than" a sign on the
trestle stating that clearance was 12 feet 3 inches (which clearance would have been a sufficient clearance for the trailer, the overall height of which, as loaded, was 12 feet 1 inch), and that one "who controls electricity or high tension wires is under a duty to exercise a high degree of care to those persons whom it might be reasonably anticipated might come in contact with the wires unless proper warning is given to those persons." The nuisance issue framed in the pretrial order became the subject of discussion between court and counsel at the inception of the trial, as a result of which it was stipulated that the wires were placed in position under statutory authority. At the close of the plaintiff's case, the defendant moved for dismissal of the negligence count on the ground of failure of proof, and for dismissal of the nuisance count on the ground that it had been stipulated that the wires were located under the trestle by virtue of statutory authority. The gist of plaintiff's argument in opposition to the motion was that there was sufficient proof of failure to warn the traveling public of the danger, i.e., the presence of the highly charged wires and the available clearance beneath them. The trial court denied the motion as to both counts. At the close of the defendant's case, the defendant moved for judgment on the ground of failure of proof on both counts. This motion was resisted by plaintiff on the same grounds, as were the foundation of his opposition to defendant's motion for dismissal, ante. The trial court denied the motion on the ground that the evidence adduced during the trial created a factual situation for the determination of the jury. The trial court charged generally on the law of negligence and nuisance, and particularly as to control of a dangerous agency such as electricity, in the following language:
"The law requires that when one uses, controls or manages a highly destructive agency such as electric current, the one so using it owes a high degree of care to others. This means that its duty is not only to use approved mechanical appliances but it must also install and maintain the same in a manner that injury or damage will not result to persons who have no knowledge thereof, or to
make certain that the public is warned of a dangerous condition, and must exercise that degree of care which an ordinary prudent person would exercise under similar circumstances."
Although opportunity was given to counsel for both parties, there was no objection made by counsel for either to any portion of the charge. The jury returned a verdict for the plaintiff in the sum of $2,500, upon which verdict a rule for judgment was filed March 8, 1951. The defendant promptly moved for a new trial on three grounds: that it was against the weight of the evidence, that it was excessive, and that it was the result of mistake, partiality, prejudice and passion. The motion was denied although the trial court molded the verdict to conform to the proofs, reducing the judgment to $2,269.86, and the defendant perfected an appeal to the Superior Court, Appellate Division. The majority of the Appellate Division considered it unnecessary to determine whether the defendant was guilty of maintaining a nuisance and proceeded to determine the appeal on the issue of negligence. The judgment of the Appellate Division was to affirm the judgment of the court below. There was a dissent filed by one of the judges of the Appellate Division and as a result the defendant brought this appeal before us under N.J. Const. 1947, art. VI, sec. V, par. 1(b) as hereinbefore mentioned.
The defendant-appellant states only two questions on this appeal, both being addressed solely to the issue of negligence. These questions are: (1) whether the Superior Court, Appellate Division, erred in affirming the trial court's denial of defendant's motion for judgment, which motion was grounded on the assertion that the plaintiff had failed to prove negligence on the part of the defendant; and (2) whether the verdict in favor of the plaintiff was so clearly against the weight of the evidence as to be the result of mistake, passion, prejudice or partiality in that the defendant's affirmative evidence overcame the plaintiff's proofs as to the absence of warning of danger present in the defendant's wires, and
in that the proofs demonstrated that the plaintiff was "guilty of contributory negligence and of the assumption ...