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Horelick v. Pennsylvania Railroad Co.

Decided: October 13, 1953.

CELIA HORELICK AND DAVID HORELICK, PLAINTIFFS-RESPONDENTS,
v.
THE PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The Appellate Division in 24 N.J. Super. 413 (1953) affirmed the County Court's action in denying a motion to strike plaintiffs' complaint and the defendant has duly appealed to this court pursuant to the grant of its application for certification. 12 N.J. 363 (1953).

On December 22, 1951 the plaintiff Celia Horelick, a resident of Jersey City, New Jersey, boarded the defendant's train at New York City bound for Washington, D.C. When she arrived at Washington she alighted, walked the length of several cars along the adjacent platform toward the exit gate which led into the station proper, slipped on ice which had settled on the platform and had been obscured by accumulated dirt, and suffered personal injuries. Thereafter she and her husband, David Horelick, filed their complaint in the Hudson County Court alleging that the defendant negligently failed to discharge its duty of maintaining the platform as a safe means of egress for passengers and claiming damages for the resulting injuries. The defendant's answer denied negligence and asserted that plaintiff Celia Horelick was guilty of contributory negligence. In the pretrial order the defendant admitted operation of the train and "that the place where the plaintiff alleges she was injured is the only means of egress for passengers alighting from the train at that particular location." The pretrial order permitted the defendant to assert an additional defense, namely, "that the defendant neither owned or controlled the platform at the Washington, D.C. station."

After the filing of its answer and the entry of the pretrial order, the defendant moved to strike the complaint upon the ground that it failed to state a claim upon which relief could be granted. This ground was clearly without

merit since the complaint, on its face, sufficiently set forth the legal claim that the plaintiffs had suffered injury because of the defendant's negligent failure to maintain a safe means of egress from its railroad car. However, the motion was accompanied by supporting documents, including affidavits which were not excluded by the trial judge (Rule 3:12-2, now R.R. 4:12-2) and may be considered as a motion for summary judgment. See Community Development Co. v. Seaside Gardens, Inc., 7 N.J. 153, 158 (1951). The affidavits set forth that the Pennsylvania Railroad Company does not operate the station at Washington, D.C., and that trains from New York to Washington pass from the "jurisdiction and control" of the Pennsylvania Railroad Company to the Washington Terminal Railroad Company as soon as the train proceeds south of Florida Avenue, Washington. It is conceded, however, that the trains are run entirely by Pennsylvania Railroad Company crews until they stop in the Washington Terminal and that no operational change takes place at Florida Avenue where the Pennsylvania's trackage joins trackage owned by the Washington Terminal Railroad Company. The affidavits also set forth that the railroad tickets authorizing carriage from New York to Washington bear the phrase "Subject to tariff regulations" and that tariff I.C.C. No. A-17442, in force on December 22, 1951, contained the following in paragraph 18 of section 2:

"Responsibility: In issuing tickets and checking baggage under this tariff for passage over the lines of the carriers participating herein, the issuing carriers act only as agents and are not responsible beyond their own lines, except as such responsibility may be imposed by law with respect to baggage."

Examination of the voluminous document entitled I.C.C. No. A-17442 discloses that although it was filed and published by the Pennsylvania Railroad Company for itself and specifically named "initial" and "participating" carriers, it makes no reference whatever to the Washington Terminal Railroad Company.

Before the County Court the defendant urged that since it did not own or control the platform on which the plaintiff Celia Horelick was injured, it was under no legal responsibility for its condition. This contention was rejected and an order was entered denying the motion to strike the complaint. Thereafter application was made under Rule 4:2-2(b) (now R.R. 2:2-3(b)) for leave to appeal, and after the filing of a stipulation "that in the event of a trial on the merits, the only issue will be the question of damages to the plaintiff," the Appellate Division granted such leave. In due course the appeal was heard and determined by the Appellate Division which, after pointing out that the defendant was under a common law duty to maintain the platform as a safe means of egress for its passengers, expressed the view that the Washington Terminal Company was not a common carrier within section 1(3) of the Interstate Commerce Act (49 U.S.C.A., ยง 1(3)) and was therefore not within the terms of paragraph 18 of section 2 of the defendant's tariff. See 24 N.J. Super. at 420. But cf. Union Stockyard & Transit Co. v. United States, 308 U.S. 213, 60 S. Ct. 193, 84 L. Ed. 198 (1939); McNamara v. Washington Terminal Co., 35 App. D.C. 230 (C.A.D.C., 1911). Although the defendant strongly attacks the soundness of the finding that the Terminal Company was not a common carrier within the Interstate Commerce Act, we need not deal with it since we are satisfied that the language embodied in the tariff may not be construed to remove or limit the legal responsibility of the defendant for proper maintenance of the platform as the means of egress for passengers alighting, as here, from its trains on passage from New York City to Washington, D.C.

The defendant's responsibility did not terminate with the safe arrival of its train at the Washington depot; it was under clear obligation to furnish reasonably safe means of egress for its passengers. See Del., L. & W.R.R. Co. v. Trautwein, 52 N.J.L. 169 (E. & A. 1889); Yetter v. Gloucester Ferry Co., 76 N.J.L. 249 (Sup. Ct. 1908); Fortein v. D., L. & W.R.R. Co., 90 N.J.L. 137 (E. & A.

1917). See also Spofford v. Central R.R. Co., 89 N.J.L. 273, 275 (E. & A. 1916), where ...


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