Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
Plaintiff, while a passenger for hire in a bus operated by defendant carrier, was struck in the right eye by a stone thrown by a teen-age boy from outside the bus. At the close of plaintiff's proofs the trial judge granted defendant's motion for a judgment of involuntary dismissal, and plaintiff appeals.
It is settled that on a motion which challenges the legal sufficiency of a case the truth of plaintiff's evidence is admitted, and he is entitled to the benefit of every legitimate inference which may be drawn therefrom. Melone v. Jersey Central Power & Light Co. , 18 N.J. 163, 170 (1955). We assay the proofs in light of this principle.
The following facts may be inferred from the evidence. Plaintiff boarded defendant's bus in New York City at about 7:00 P.M. on June 30, 1958. It was a hot day and all windows of the bus were open. He took the aisle position on a two-place seat on the left side near the rear. John Weber, a friend, sat next to him. At about 7:25 P.M. while the bus was passing premises identified as 174 Knickerbocker Road, Englewood, N.J., plaintiff turned his head to speak to Mr. Weber. 174 Knickerbocker Road is the address of an American Legion Post home. Either on its grounds or adjacent thereto, were one or more tennis courts and a bridge spanning a brook. As the bus approached there were four boys standing either on a tennis court, or on the bridge, with arms overhead in a "throwing" position. As the bus passed, it was hit by three stones, and a fourth passed through an open window and struck plaintiff's right eye, so injuring it that surgical enucleation subsequently was required. Weber called for the bus driver to stop; he
did so. Plaintiff and Weber by foot, and the driver in a passing automobile, returned to the scene, and with the aid of one Harold P. Taylor, intercepted one or more of the boys a short distance away.
There was considerable evidence that similar occurrences in the area, while sporadic, were sufficiently frequent to permit an inference that they amounted to a known practice. Plaintiff himself said that there were prior occurrences "off and on" when stones were thrown at buses "along the way home." Weber said that there were "quite a few" such occurrences in the particular area, between 1951 and June 1958, estimating that this happened, "once or twice a year." Harold P. Taylor, a resident for 16 years at the Knickerbocker Road address, who saw the boys throwing stones as the bus passed, but did not know that an accident had occurred until the bus stopped and the plaintiff ran back, testified that over the entire period of his residence there, and "on an average of every two months or so," he had seen boys throwing stones at buses, at the tennis court, at "everything" and "anything." Harry W. Mowerson, a member of the American Legion Post, who had seen the bus approaching and the boys throwing stones, and heard a stone "hit the bus," also testified to previous like happenings. He said that "after school they [boys] come here in the evening and they throw stones all over the place, at the tennis courts and every place, * * * many a time I saw the kids throwing stones at cars and everybody else passing. Nobody happened to get hit." The prevalence of this dangerous activity was also substantiated by Adolf Contreni who testified that over a period of 15 years he had observed it "on an average of four or five times a year."
In general terms, the plaintiff's complaint was predicated upon the theory that defendant, owing a high degree of care to its passengers, was obliged to foresee the dangerous potentiality of a condition of which it had knowledge, or should have had knowledge in the proper discharge of its duty. The sweep of the claim if proved, was sufficiently
broad to affix liability upon defendant, (1) under the doctrine of respondeat superior for failure of its driver to exercise reasonable care under circumstances which were or should have been apparent to him on the particular occasion, and (2) for failure of the company itself, independent of the doctrine of respondeat superior , to guard against injuries to its passengers resulting from a dangerous practice the knowledge of which it was charged with, by reason of prior and repetitive acts of like nature. Cf. Harpell v. Public Service Coordinated Transport , 20 N.J. 309, 315-316 (1956).
In resisting the motion for involuntary dismissal plaintiff's attorney needlessly staked the sufficiency of his proof upon the applicability of the doctrine of res ipsa loquitur. However, the trial court did not decide the motion on this ground and appellant now concedes that the doctrine is inapplicable.
The precise question presented to the trial court was whether the case was controlled by Harpell v. Public Service Coordinated Transport, supra. There, plaintiff, a passenger in defendant's trolley car, was struck in the face by a jagged piece of concrete and pebble mixture which had been thrown by a 15 year old boy, through a closed window of the moving car. The car was proceeding on defendant's private right of way; the boy was standing beyond a fence which bordered it. Defendant's answers to interrogatories revealed prior knowledge of 17 somewhat similar occurrences along the route during the five years immediately preceding the accident, five of these during the immediately preceding year. A branch of plaintiff's theory of liability in Harpell was that defendant was negligent for not having installed "protective devices" to prevent injuries of the kind involved. Of course no such claim is advanced in the case at bar. However, the decision in Harpell did not turn on this point. ...