On certified appeal from the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Jacobs and Brennan. For reversal -- Justices Oliphant and Burling. The opinion of the court was delivered by Heher, J.
[20 NJ Page 311] Plaintiff was awarded damages for personal injuries sustained while a passenger on an electric trolley car operated by the defendant common carrier on its line extending between the Market Street station of the Pennsylvania Railroad and Franklin Avenue, in Newark, New Jersey. The Appellate Division of the Superior Court affirmed the judgment, 35 N.J. Super. 354 (App. Div.
1955); and we certified the case here on defendant's petition. 19 N.J. 327 (1955).
In the late afternoon of February 6, 1953, as the trolley car proceeded along the carrier's private right of way leased from the City of Newark, toward an overpass for passengers at the Park Avenue station, not far from where the underground line commonly known as the "City Subway" comes to the surface and continues at ground level, on the bed of the old Morris Canal, a "jagged piece of concrete and pebble mixture," of baseball size, thrown by a 15-year-old boy from a point beyond a fence bordering the rights of way through a window on the left side of the trolley, struck plaintiff, there seated, and inflicted head and facial wounds which included the loss of his left eye. There was evidence that the trolley windows were equipped with outside metal screens, extending halfway up from the sill, to protect protruding arms of passengers. The missile came through the window above the screen, shattering the ordinary glass of which it was made.
The defendant carrier's answers to interrogatories revealed prior knowledge of 17 somewhat similar occurrences along this route during the five years preceding the particular misadventure, five of these during the immediately preceding year. Evidence was adduced from the carrier's supervisor that he had received reports of such happenings on an average of one a month. And it was shown that there were three such in January 1953, the month prior to plaintiff's injury; and that the carrier had from time to time informed the local police of the lawless acts, and patrolmen had been specially assigned to the troubled area by an emergency order made January 15, 1953.
The operator of the trolley testified that there was "nothing unusual about" the "throwing of rocks * * * in this same vicinity"; that was true of the whole period of his employment on that line; "When the kids come out of school they usually throw rocks"; "Sometimes near the rush hour or in the morning"; "not every other day"; "Every other day, sometimes"; "Somewhere in this vicinity." As the car
approached Park Avenue, he observed three boys "up on the street there," one "maybe 15, and the others were seven and ten somewhere in there"; "The big fellow held a rock"; "I waved to him not to throw it"; "I kept on going, and all of a sudden I heard something like a noise, but I thought it was a circuit breaker in the trolley"; "He was standing ready to throw a rock and I waved to him and figured maybe he wouldn't throw it"; "I figured maybe I would scare him a little"; "He was standing up like this with the rock in his hand and I waved to him figuring maybe he wouldn't but he did." The witness explained his failure to stop the car: "I figured that by the time he threw it he would miss the car because the speed and the throw would be different." "Q. You mean you figured you would take a chance? A. I wouldn't take a chance on that. Q. But you did take a chance? A. No. I figured he might hit the fence because I didn't expect him to throw that far." And then he testified otherwise: "Q. Why couldn't you stop your trolley? A. I can't give no answer. Q. You knew that the boys almost every other day had during the morning or rush hours at night been throwing rocks and you felt this boy was going to throw a rock. Why didn't you stop your trolley? A. I couldn't answer that." Park Avenue "is a regular station," the witness said; it is "partially underground; it's like in a gulley, partly."
Apropos of the carrier's contention that there was no showing of a departure from "customary standards of construction and equipment germane to considerations of safety," Judge Conford, for the Appellate Division, said "the question of standards is irrelevant since the hazard involved did not arise from defendant's management of its own facilities and had no relation to those safety factors or considerations which are ordinarily taken into account in planning or installing trolley equipment," but "Apart from the matter of protective devices," "there is an open question as to whether the failure of the motorman to warn his passengers of the danger, or to stop, alight and admonish the juvenile, when he saw him in an attitude plainly portending the projection
of a dangerous missile at the vehicle in his charge, did not constitute a default in that duty imputable to defendant," and the "assessment of the reasonableness of his behavior and the consequent resolution of that question was for the jury, not the court." Invoking the doctrine of Rourke v. Hershock, 3 N.J. 422 (1950), it was found that "while the asserted negligence of the defendant with respect to any one of the several elements charged by the plaintiff here to constitute want of the required duty of care might not have been sufficient, in and of itself, we conclude that the combined factual background of this accident made for a jury question."
The carrier's thesis in limine is that the "charge of negligence related solely to" its "equipment" on the trolley car, and so it is entitled to judgment as a matter of law "when the undisputed proofs clearly demonstrated that the sole cause of the accident and the plaintiff's injury was the vicious act of a boy 15 years of age, hurling a jagged piece of concrete through the window of the trolley car from a point beyond a cyclone-type fence bordering the right of way"; and, moreover, there was no proof that "certain mechanical appliances could or should have been used by defendant on its trolley car, in the exercise of the required degree of care, and that it failed to use known mechanical devices in ...