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Burke v. Lincoln Transit Co.

Decided: October 26, 1955.

LORETTA K. BURKE AND JACOB O. BURKE, PLAINTIFFS-APPELLANTS,
v.
LINCOLN TRANSIT COMPANY, A BODY CORPORATE, DEFENDANT-RESPONDENT



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

Loretta K. Burke sues to recover for injuries sustained while a passenger in a bus operated by defendant. Her husband joins as plaintiff for consequential damages. The gravamen of the charge is that the bus driver was negligent in stopping the bus suddenly, causing Mrs. Burke, who was standing in the aisle preparatory to alighting, to be thrown backwards into the windshield and down into the stairwell. The testimony as to her subsequent disability laid heavy stress on an alleged condition of the knees and lower back. There was abundant evidence to support defendant's contention that the stoppage of the bus was caused by the pulling away from the curb of an automobile in front of the bus and its immediate unforewarned backing up in the path of the bus. The jury returned a verdict of no cause for action in favor of the defendant.

The appeal is confined to two points: the refusal of the trial judge to charge the jury in certain respects requested by plaintiffs and the admission in evidence of an unsigned statement taken from Mrs. Burke by an investigator employed by defendant.

The requests to charge were these:

"2. The defendant, Lincoln Transit Company, Inc., as a common carrier was under the duty of so operating its bus that there should be no jerks or jolts or sudden stops which are of such an unusual character as to speak of negligence in the operation of the bus. If you find that this bus stopped with a sudden jerk or jolt of such a character as to speak of negligence in the bus operation, then you may find that the Lincoln Transit Company, Inc. was negligent in the operation of the bus. If the Lincoln Transit Company, Inc. was negligent in the operation of its bus, then it is liable to Mrs. Burke, a passenger, for the injuries proximately resulting therefrom.

3. If you find that this bus stopped with such a violent jerk as to throw the plaintiff against the window with such violence as to break it, then it is for you to determine whether there was negligence in the operation of the bus which caused the injury to the plaintiff."

The authority cited to the court was Cohn v. Public Service Co-ordinated Transport , 109 N.J.L. 387 (E. & A. 1932). In that case the court reversed a nonsuit where there was evidence that the start of a bus with a sudden jerk caused injury to a passenger. The question of negligence was held for the jury. The language of the court was plainly not intended as a precept for a jury charge. In the present case the court fully and correctly charged the jury that defendant's duty to plaintiff was one of exercising a high degree of care for her safety. While it would have been appropriate for the charge to refer to the factual setting it was not necessary for it to do so in view of the perfect apparency of the sudden stop as the basis for the claim. The language of the charges requested would have practically imputed liability to the defendant. There was no prejudicial error in their denial.

The point respecting the admission of the statement presents a closer question. The testimony of the investigator was that he took down in writing Mrs. Burke's account of the circumstances of the incident and of her injuries, about three weeks after the accident, at her home and in the presence of her husband; that he read it back to her, made certain corrections and addenda at her direction and submitted it to her husband for inspection. He said that, as amended, it contained what she said and that she refused to sign it because they had engaged an attorney. By direction of counsel "to refresh your recollection and tell us what she said" he read its contents in evidence without any objection on the part of plaintiffs and said Mrs. Burke made no reference at the time to any injury to her back. Upon its offer in evidence as an exhibit counsel for plaintiffs objected, stating no ground other than an observation that "the statement is not signed" and that "it is a memorandum made by this witness." The court admitted it solely to contradict the plaintiff in the matter of alleged injury to her back and advised the jury to "bear in mind that she said she did not read the statement * * * however it was read to her * * * and she didn't sign." The investigator

was cross-examined concerning the taking of the statement and the corrections and interlineations.

On cross-examination Mrs. Burke admitted making each of the assertions attributed to her in the writing except that "a car pulled out from curb and bus driver had to stop suddenly" She said she did not see this or tell the investigator she saw it but that she was so told after the event.

The propriety of the admission of the statement involves the possible impact of a number of phases of the law of evidence: refreshment of recollection, recorded past recollection, admissions, corroboration of a witness by similar statements, and perhaps others. It is ordinarily requisite that an objection to testimony be accompanied by the grounds therefor, R.R. 4:47, so that the trial court may have the opportunity to purge the proofs of extraneous or prejudicial elements. Priest v. Poleshuck , 15 N.J. 557, 565 (1954). Counsel here made no objection at all to the reading of the statement and stated no clearly intelligible ground of objection when it was offered in evidence as a writing. Under the peculiar circumstances here presented we think plaintiffs are consequently precluded from contending there was prejudicial error. It is ...


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