On certified appeal from the Appellate Division of the Superior Court.
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 Heher, J.
[14 NJ Page 342] On January 13, 1951 the deceased Walter R. Shellhammer suffered fatal injuries while pursuing his employment in interstate commerce with the defendant railroad; and, asserting actionable negligence under the Federal Employers' Liability Act, 35 Stat. 65, 36 Stat. 291, 53 Stat. 1404, 45 U.S.C., sec. 51 et seq., recovery is sought in this proceeding for the pecuniary loss sustained by the widow and next of kin of the deceased.
There was a judgment of dismissal at the close of plaintiff's case, for want of proof of a negligent failure of duty as the proximate cause of the fatality; and the Appellate Division of the Superior Court affirmed the consequent judgment. We certified the cause for appeal on plaintiff's motion.
The deceased was a foreman of car inspectors and repairers. His particular assignment involved the assembling of three groups of freight cars into a single train, in the railroad's Jersey City freight yard, for movement to Oak Island, 11 miles away. The last of the cars were coupled, the air hose connected and the valves opened by two car inspectors under the deceased's immediate supervision, and the operating test was then made preliminary to setting the train in motion. The test was satisfactory and, after building up a reserve of air pressure, a matter of a very few minutes at the most, the engineman blew the engine whistle to indicate he was ready to move, whereupon the conductor gave the engineman the starting signal and the train was put into motion, the engineman the while ringing the engine bell, and the train moved out of the yard. Shortly thereafter, the decapitated body of Shellhammer was found between the rails of the track, the arms at shoulder level and the left hand gloved.
The contention is that the train was moved without adequate warning while Shellhammer was yet engaged in replacing a defective air hose lately discovered between two cars of the train. A length of air hose was found a short distance from the body, and it is theorized that after the two car inspectors "had concluded their work, given the all clear signal and left, Shellhammer observed that a leak had sprung in the hose between the 23rd and 24th cars," and he "thereupon put on his work gloves, shut off the air supply, replaced the defective hose with a good one, threw the defective hose on the ground where it was subsequently found and just as he turned the angle cock to turn the air on, the train started and killed him." The ordinary presumption
of due care by the deceased for his own safety is invoked.
The question is whether there is evidence to sustain this hypothesis of negligence. Appellant's insistence is that defendant's employees knew, or in the exercise of reasonable care, should have known, that Shellhammer "was in the vicinity of the train," and that "a leak in an air hose or any defect, for that matter, might present itself at any moment," and "a conscientious employee like Shellhammer would take steps to remedy such a situation," and under the statute "the jury is the appropriate tribunal to determine the questions of reasonable care and proximate cause."
But, if there is to be a submission to the jury, there must of necessity be a sufficient showing of negligence, the evidence being accredited, to sustain the pleaded cause of action. Liability under the act arises from negligence causing injury and not from the injury itself. The common-law concept of negligence is embodied in the federal statute. The question is what a reasonable and prudent person would have done under the circumstances, and where fair-minded men would differ on that, the issue goes to the trier of the facts. Stone v. New York, C. & St. L.R. Co., 344 U.S. 407, 73 S. Ct. 358, 97 L. Ed. 441 (1953). And the injury must perforce be the natural and probable consequence of the negligence or wrongful act, such as ought to have been foreseen in the light of the attending circumstances. Events "too remote to require reasonable prevision need not be anticipated." Brady v. Southern R. Co., 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239 (1943). The burden of proving negligence and proximate cause rests upon the plaintiff; "mere speculation" is not enough; the question is whether there are probative facts reasonably justifying the inference of fault and proximate cause, and when such is the case it is for the jury to determine whether that inference ought to be drawn. Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520 (1944); Moore v. Chesapeake & Ohio Railway Co., 340 U.S. 573, 71 S. Ct. 428, 95 L. Ed. 547 (1951). Since the right of action comes
by a federal statute, under the Supremacy Clause of the Federal Constitution, Article VI, the state courts must conform. The sufficiency of the evidence in this regard is a federal question reviewable by the Federal Supreme Court, to insure the authority of the act in the state courts. There must be more than a scintilla before a factual issue is raised for the jury. When the evidence is such that, without weighing the credibility of the witnesses, the absence of negligence is the only reasonable conclusion, there is no issue for the jury. Brady v. Southern R. Co., cited supra.
Such is the rule in the judicial administration of New Jersey's negligence law, derived as it is from the common law. The scintilla rule does not obtain here. The question is whether the trier of the facts could, on any reasonable view of the evidence, rejecting all evidence and inferences unfavorable to the plaintiff, find that the plaintiff had established the facts essential to his asserted cause of action. Is there any evidence which, if accepted and given its fullest probative force, reasonably tends to sustain the pleaded cause of action? Mere surmise or conjecture is not enough. Sivak v. New Brunswick, 122 N.J.L. 197 (E. & A. 1939). This is the English common-law rule. Are there facts in evidence which if unanswered would justify ...