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Monihan v. Public Service Interstate Transportation Co.

Decided: October 9, 1952.

CORNELIUS T. MONIHAN, PLAINTIFF-APPELLANT,
v.
PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AND MELVIN L. RANDOLPH, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



McGeehan, Bigelow and Smalley. The opinion of the court was delivered by Smalley, J.s.c.

Smalley

This is an appeal from the order of the Superior Court, Law Division, Gloucester County, granting a new trial and setting aside a verdict of $15,000 in favor of the plaintiff and against the defendants.

Application was made to this court under Rule 4:2-2(b) to permit an appeal on behalf of the plaintiff. On March 25, 1952, the order was entered.

On November 5, 1950, plaintiff sustained substantial injuries while he was attempting to board a bus owned by the defendant Public Service Interstate Transportation Company and operated by the defendant Melvin L. Randolph. The accident occurred at or near the intersection of Broad and Delaware Streets in the Borough of Paulsboro in the early evening or late in the afternoon, in any event it being after dark.

Plaintiff testified that he saw the bus coming as he came out of a cigar store near the bus stop and that immediately prior to boarding the bus he saw a woman passenger enter, that the bus was standing still when he first stepped on and the woman passenger had paid her fare and was walking to the rear when the bus started up while plaintiff was standing on the step of the bus; that the defendant, Randolph started the bus and put into motion the mechanism by which the door was closed and that the impetus of the closing door threw the plaintiff to the street.

There was evidence that one of the plaintiff's shoes was found on the step of the bus after the accident. Photographs were introduced into evidence showing this bus with its door open and closed, indicating that if the door of the bus were closed, a passenger would have no place to stand or much less enter the vehicle.

Plaintiff further testified that the bus was standing still, that the door was open, that as he was standing on the step of the bus the driver shut the door on him, started the bus, that he was thrown and dragged with the resulting injuries to his body. The extent of these injuries are not in dispute.

Mrs. Zane, a passenger, testified that she saw the plaintiff's foot and leg and one or both hands caught in the door. It is true that when the defendants interviewed Mrs. Zane shortly after the occurrence of the incident, she gave a statement that she did not know anything about the happening of the accident. She explained this, however, when under cross-examination, by saying that she did not wish to become involved in the matter, but now that she was under oath, she would tell the truth.

Mrs. Valentino, the passenger preceding the plaintiff, testified that she saw plaintiff's hand caught in the door and that some one cried out "there is someone else getting on."

The defendant Randolph testified that after the woman passenger got on his bus, no other person attempted then to board the conveyance. He testified that he "flipped the lever that closes the door" at the time that he started the bus

and after proceeding about eight feet into the street he heard a bump, stopped his bus and found the plaintiff in the road, and that he had ...


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