Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
Defendant, a common carrier of passengers for hire, appeals from a judgment entered upon a verdict of a jury for damages in favor of plaintiff in an action to recover for injuries sustained while a passenger in an electric trolley car operated by defendant.
On February 6, 1953, in late afternoon, plaintiff boarded the trolley at the Broad Street underground station of the defendant's "city subway" line. He took a seat on the left-hand side of the trolley about eight seats from the front, adjacent to the window. This line emerges from underground a short distance thereafter and continues on a private right-of-way leased by defendant from the City of Newark. Several minutes later, while the car was approaching an overpass for passengers at the Park Avenue Station, the plaintiff heard
a tinkle of glass and felt an "explosion or shattering" at his head and blood gushing from above his left eye. The injury resulted in plaintiff's loss of the eye. It was caused by the throwing of a jagged piece of concrete and pebble mixture through the window of the trolley by a boy of about fifteen years of age from a point beyond a cyclone-type fence bordering the right-of-way. The boy's precise position was disputed by defendant's witnesses.
The operator of the trolley testified that at a point identified as about 150 feet before the overpass he saw the boy with what seemed a rock in his hand standing some distance behind the fence, his arm raised as though poised to throw. The fence was seven or eight feet high. He "waved to him not to throw it," and, as he "figured maybe he wouldn't throw it," kept on going. He also testified that he "figured that by the time he threw it he would miss the car because the speed and the throw would be different." Shortly thereafter he heard the crash of the missile.
Another passenger testified that the boy who threw the rock stood close to the fence where it borders a stairway leading to the overpass and that at that point the fence was the height of the boy's waist; that he saw the boy "winding up; and as the trolley passed I put my hand up because I thought the stone was coming in my window, but it came in two windows in front where the plaintiff was sitting."
There was evidence that the trolley windows are covered on the outside by metal screens from the sill to about midway, installed to prevent protrusion of arms by passengers. The object which struck plaintiff came through the window above the screen. The windows on the trolley were of ordinary glass.
Defendant's answers to interrogatories specified 16 instances in four years prior to the accident of its attention being called to the throwing of objects at or into its trolleys in the general vicinity of this occurrence, seven of these being during the last year. Its supervisor testified he received reports of such instances on an average of one a month. A Newark police officer testified defendant had called this condition to the attention of the authorities over a period of time and that
three such incidents had occurred within a two-day period in January, 1953; that special assignments of patrolmen to police the situation were made by emergency order on January 15, 1953. The operator of the trolley here involved testified that rock throwing by boys in the vicinity of the accident "wasn't unusual," that it usually occurred near the rush hours and sometimes happened "every other day."
The appeal is basically on the ground that there was no evidence of negligence on the part of defendant warranting submission of the case to the jury and that the trial court was therefore in error in refusing to grant defendant's motion for judgment at the conclusion of the submission of evidence. It urges that there is no showing that it failed to use standard equipment on the trolley or known mechanical devices which might have prevented the accident; that the evidence as to prior similar incidents was not competent or material; and that a carrier's obligation to carry its passengers with a high degree of care for their safety does not extend to dangers emanating from the mischievous or malicious acts of persons not on its premises or subject to its control. The point last noted is one of first impression in this State in the setting here presented and it is apparent on the face of the factual recital that the question is close. We would be less objective than our duty requires not to acknowledge the difficulty of the problem. The defendant operates on a fixed line. The obligations of its service to the public call for rapid and continuous transportation of large numbers of passengers on its trolley line, particularly during rush hours. But its experiences during the period preceding this accident projected it backward in time from a modern rapid-transit electric trolley line to something akin to the ambuscade-conscious stagecoach of the early West. Our concern is with the impact of this untoward episode in the life of this utility on its duty to its passengers.
"The general rule is that a common carrier of passengers must use a high degree of care to protect them from danger that foresight can anticipate." Rourke v. Hershock , 3 N.J. ...