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taining the cable and wires of the company, No. 111 on the list, there was a conviction severing six or seven of its wires. The in under an ordinance for refusing to carry pasterruption of communication was noticed at sengers for legal fare. The testimony falls to once, and on that day and the next repairs show that the prosecutor was one of the class were made involving an expense of $126.92. named in the ordinance, namely, that he was The court below found as facts from the evi in the business of driving an omnibus for dence that the plaintiff and his joint con fare. He may have been in private employ. tractor, by their servants and employés, did In No. 112 there is a conviction for rethe acts complained of causing the injuries, fusing to carry a passenger. The proof is and that these acts constituted negligence for that the plaintiff in error was the driver of which the plaintiff was liable, and he there. a "licensed bus." There is nothing in the upon gave the judgment under review.

proofs to show that this compelled him to The rule is well settled, and is not disput be a common carrier. ed in this case, that this court will not review In each case the conviction is set aside. the decisions of the court below on questions of fact. South Brunswick v. Cranbury, 52 N. J. Law, 298, 19 Atl. 787. It can only look

(69 N. J. L. 127) to see if there was legal evidence before the

KLAUS V. MAYOR, ETC., OF JERSEY court below upon which its judgment might

CITY. . be based. It will not reverse, though the

(Supreme Court of New Jersey. Feb. 24, evidence might lead this court to a different

1903.) conclusion. Brunswick v. Cranbury, ubi supra; Brown v. Ramsay, 29 N. J. Law, 117;

CHANGE OF STREET GRADE-DAMAGES

LACHES. Jeffr. 9 v. Owen, 41 N. J. Law, 260; Mon.

1. When a city is about to change the grade Park Ass'n v. Warren, 55 N. J. Law, 598, 27

of a street on which a building stands, the fact Atl. 432; Jersey City v. Tallman, 60 N. J. that the owner of the building secures such a Law 239, 37 Atl. 1026.

modification of the proposed change as will re

sult in less injury to him does not bar his But it is contended for the plaintiff in cer

right to damages for the change actually made. tiorari that there is no evidence of such legal 2. Under the circumstances of this case the force and verity that it should be held suffi. relator's right to relief is not barred by laches. cient to justify the judgment under the rule (Syllabus by the Court.) as cited. It is true that there is no direct

Application by the state, on relation of proof as to how, when, or by whom the cut

Henry Klaus, for writ of mandamus to the ting of the cable was done; the evidence on

mayor and aldermen of the city of Jersey, these points is largely circumstantial in char

City. Writ to issue. acter. We have examined the evidence on

Argued November term, 1902, before HENboth sides with great care, as we have also

DRICKSON and DIXON, JJ. the discussions of it in the briefs of counsel. We deem it unnecessary to discuss the evi.

Bedle, Edwards & Lawrence, for relator dence in detail in the opinion. As a result

John W. Queen, for defendants. of, our examination, we have reached the conclusion that there was sufficient evidence, DIXON, J. Under an agreement with the under the rule herein stated, to support the Erie Railroad Company Jersey City lowered findings of fact and the judgment based the grade of Grove street at its intersection thereon of the court below.

with Eleventh street, on the corner of which The result is that the judgment below is a building of the relator stood. The work affirmed, with costs.

was done in the summer of 1899, and re sulted, the relator claims, in damage to his

property and the property of adjoining own. (69 N. J. L. 233)

er's. He therefore asks for a mandamus to ATLANTIC CITY V. DEHN (two cases).

compel the city authorities to have a proper (Supreme Court of New Jersey. Feb. 24, award made for the damages so caused. The 1903.)

city resists the application on the ground OMNIBUS DRIVER-COMMON CARRIER. that the relator assented to the change, and 1. Proof that a person was the driver of a also has been guilty of laches in pursuing his "licensed bus” in a city does not show him to remedy. have been a common carrier, and thus legally bound to carry passengers.

What the relator assented to, as shown by

the evidence, was a modification of the proAlbert Dehn was convicted of two viola

posed change, which he thought would retions of an ordinance of Atlantic City, and

sult in less damage to his property; but it brings certiorari. Conviction set aside.

does not appear that he assented to forego Argued November term, 1902, before GAR

his right to compensation for whatever damRISON and GARRETSON, JJ.

age the modified change would cause. U. G. Styron, for plaintiff in certiorari. On the question of laches, the case shows Harry Wooton, for defendant in certiorari, that on June 6, 1899, the board of street and

water commissioners referred the matter to PER CURIAM. These two cases were ar the commissioners of assessments to asgued together. In the first case, which was certain the damages and benefits resulting

from the change of grade, and that the pres judgment for plaintiff, defendant brings erent proceeding was instituted in May, 1902.

ror.

Affirmed. Evidently, during a part of the interval, the Argued November term, 1902, before GUM. relator was justified in expecting that the MERE, C. J., and VAN SYCKEL, FORT, commissioners of assessments would proceed and PITNEY, JJ. to perform the duty thus devolved upon

Vredenburgh, Wall & Van Winkle, for them, and it does not appear that during the

plaintiff in error. Simpson & Lillis, for deresidue of the interval, or indeed at any fendant in error. time, anything occurred which would change the situation to the detriment either of the GUMMERE, C.J. This action was brought city or of property owners. Under these cir

to recover for personal injury received by the cumstances we think the delay should not plaintiff under the following circumstances: bar relief.

He was an employé of the Hudson County These objections being put aside, the case Gas Company, which at the time when he is governed by Clark v. The City of Eliza received his injury was engaged in laying a beth, 61 N. J. Law, 565, 40 Atl. 616, 737, gas main through Summit avenue, in the and a peremptory mandamus should be 18 city of Jer City. For the purpose of laysued.

ing the main the company had opened a

trench in the street, about four feet wide, (69 N. J. L. 1)

between the westerly curb line and the tracks DAUM V. NORTH JERSEY ST. RY. CO.

of the defendant company, the east line of

the trench being about three feet distant (Supreme Court of New Jersey. Feb. 24,

from the nearest rail of the car track. The 1903.)

duty of the plaintiff was to carry pieces of STREET RAILWAYS-INJURY TO LABORER IN lumber from a point where it was piled to STREET-NEGLIGENCE CONTRIBUTORY NEGLIGENCE-EVIDENCE-QUESTION FOR JURY

the trench, and there deliver it to other em. WITNESS-IMPEACHMENT.

ployés, who were at work in the trench, and 1. Plaintiff, engaged in work on the public who used the lumber for the purpose of street which necessitated his kneeling on de blocking up the gas main in order to keep it feudant's track to hand boards down into a trench, was injured by defendant's car, which

level. It was while engaged in doing this came upon him, without warning, contrary to

work that he received the injury on account the usual custom, which was for those in of which the suit was brought. The evidence charge of the car to ring a gong 'when ap

produced by the plaintiff shows that for the proaching the point where plaintiff was at work. Plaintiff looked before kpeeling, and

purpose of delivering these pieces of timber, there was no car in sight. He did not look or braces, to his fellow workmen, he went again, and the car came around the curve, 250 upon that part of the street between the feet distant, about a minute later, and struck

trench and the car track, and knelt down him. Held, assuming that the company was under no duty to give a warning of the ap

there with his back to the tracks, and with proach of the car, whether it was negligent in one of his feet upon or over the nearest failing to do so, having once assumed such rail, and that, while engaged in handing the duty, was a question for the jury.

braces to the men in the trench, one of the 2. Whether the plaintiff was guilty of contributory negligence, in failing to look repeat

cars of the defendant company came by and edly for approaching cars, was a question for ran over his foot. It further appeared that the jury.

the plaintiff, when he knelt down, looked in 3. In an action against a street railway for

the direction from which the car approached, injuries to a person working in the street, the absence of proof that plaintiff's employer had a and that at that time there was no car in right to prosecute any work on the street does sig!it; that he did not look again before the not justify the conclusion that plaintiff was a

accident happened; that the accident OCtrespasser as to defendant, there being nothing in the record to show that the presence of de

curred about a minute after he knelt down; fendant's tracks in the street was authorized. that the car came into Summit avenue at

4. There is yo presumption that the prosecu "Five Points," which was about 250 feet distion of a work by a corporation in the public

tant from the point where the plaintiff was streets is unauthorized and its employés trespassers.

kneeling; that no warning was given of the 5. In an action against a street railway for approach of the car, either by the ringing of personal injuries, one of plaintiff's witnesses

a gong or otherwise; and that it was the having testified on cross-examination that he had once been injured by one of defendant's

custom of those of the defendant company's cars, a question, "Did you present any claim to employés who were operating these cars to the company was properly excluded.

ring a gong when approaching the point 6. A question asked the motorman, “Do you know whether (plaintiff] saw you?” was prop

where the gas company's servants were at erly excluded.

work. 7. A wri statement, signed by one of At the close of the plaintiff's case there plaintiff's witnesses. offered for the purpose of was a motion to nonsuit, upon the ground impeaching his testimony, no foundation having been laid, was properly excluded.

that no negligence was shown on the part of

the defendant company or its employés, and Error to court of common pleas, Hudson upon the further ground that it affirmatively county.

appeared that the plaintiff contributed by Action by John F. Daum against North his own negligence to the injury which he Jersey Street Railway Company. From a received. This motion was refused by the

trial judge, and the first assignment of error ring his gong as a warning, and he had a is directed to this refusal.

right to expect that this warning would be Assuming, but not admitting, that it can given to him. Having looked, when he knelt not be said, as a matter of law, that it is the down near the track, for the purpose of asduty of a street railway company to give certaining whether a car was approaching, notice to persons working in a public high it was a question for the jury to determine way, in dangerous proximity to its tracks, of whether it was negligent in him, under the the approach of its cars, it is at least a ques existing circumstances, not to make another tion for the jury, and not the court, whether, observation during the minute which elapsed when the company assumes such a duty, its before the accident occurred. Harmer v. failure to perform it in a given instance is Reed Apartment, etc., Co. (N. J. Err. & App.) not negligence. And that was the situation 53 Atl. 402. in the case before us. As has already been The second assignment of error is directed stated, it was the custom of the defendant's at the action of the trial court 'in overruling employés, who were operating its cars, to a question asked of one of the plaintiff's witring a gong when approaching the place nesses upon cross-examination. The wit. where the servants of the gas company were ness, having stated that he himself had on at work. It is further contended, on the one occasion been injured by one of the depoint that no negligence was shown on the fendant company's trolley cars, was asked, part of the defendant or its employés, that, "Did you present any claim to the comso far as the proofs showed, the gas company pany?" and, on objection being made, the was prosecuting its work in the public street question was overruled. It seems manifest without right, and that consequently the that this question was immaterial. The conplaintiff was a trespasser on the track of the tention is that it called for an answer which defendant. But if absence of proof on the would have shown bias on the part of the subject justifies the conclusion that the gas witness, thereby affecting his credibility. company was without authority to do the But the mere fact that he did or did not work in which it was engaged, it must also present a claim to the company could not be concluded that the presence of the de have had any such effect. If the witness fendant's tracks in the street was unauthor had presented a claim, and his claim had ized, for there is an entire absence of proof been refused recognition, this fact might have on that subject also. Consequently, notwith tended to show bias; but the question asked standing the unwarranted action of the gas did not call for the disclosure of any such company (if it was such), the plaintiff was fact. It was properly overruled. not a trespasser so far as the defendant com The defendant produced as a witness the pany was concerned.

motorman who was operating the car which But we do not consider that want of proof ran over the plaintiff. He testified that, as on the subject justifies the conclusion that the car approached the point where the acthe gas company and its employés were not cident happened, the plaintiff was facing lawfully prosecuting the work in which they | him, and appeared to him to see the car. He were engaged. In the absence of proof, there was then asked by the defendant's counsel is no presumption either in favor of or this question: "As you came along, do you against such a conclusion. There being no know whether this man Daum (the plaintiff] evidence that the plaintiff was a trespasser saw you?” This question was overruled on upon the track of the defendant company, it the ground that the witness could not know was not entitled to have its responsibility to whether the plaintiff saw him, and this rulhim limited to injuries which were willfullying is the ground of the third assignment of inflicted.

The trial judge properly excluded this We conclude, therefore, that it could not question. The witness had already testified have been said, as a matter of law, at the that the plaintiff appeared to him to see the close of the plaintiff's case, that there was no car, and this was the limit to which he could evidence upon which the, negligence of the truthfully go in his testimony. He could not defendant company could have been predi know, absolutely, whether the plaintiff did cated.

or did not see the car. Nor do we think, as the case then stood, The fourth assignment of error, and the that the trial judge would have been justified last which is argued on behalf of the defendin taking it from the jury upon the ground ant company, is directed at the ruling of the that contributory negligence on the part of trial judge in excluding a written statement, the plaintiff had been conclusively shown. signed by one of the plaintiff's witnesses, Although he was bound to use reasonable with his mark. The statement was offered care for bis own safety, this did not require for the purpose of impeaching the witness, him to look continuously for the approach of the facts set forth therein being said to be

To have done this would have made contradictory of evidence given by him on it impossible for him to perform his work. the witness stand. But in order to make it He knew that he was in a place where he competent, for the purpose for which it was was safe, except when a car was passing. offered, it was necessary for the plaintiff in He knew, too, that it was the custom, when error to have first inquired of the witness a car was approaching, for the motorman to whether he had not made a statement, set

error.

a car.

ting forth the facts which were contained in tained great damage, etc.; whereby, and by it, and this was not done. Neither was it force of the statute in such case made and shown that the witness had any knowledge provided, an action hath accrued to the plainof what the statement contained when he tiff, who is the father of the said William signed it. It was not written by him, he H. Callaghan, to demand and have of and was unable to read, and it does not appear from the defendant the several sums above that it was read over to him. The state demanded, etc. ment was properly excluded.

To this declaration a general demurrer has The assignments of error relied upon by been interposed, on the ground that no acplaintiff in error being without substance, tion can be maintained for the recovery of the judgment under review should be af damages by reason of the tortious killing of firmed.

a human being, excepting only the action that is permitted by statute to be brought

by the administrator for the benefit of the (64 N. J. L. 100)

widow and next of kin. CALLAGHAN V. LAKE HOPATCONG ICE

Gen. St. p. 1188, CO.

88 10–12. It is entirely settled that, except

for the statute, no civil action lies for the (Supreme Court of New Jersey. Feb. 24,

damage caused by the death of a human 1903.)

being. Grosso v. Delaware, etc., R. Co., 50 INJURY TO SON-ACTION BY FATHER. N. J. Law, 317, 13 Atl. 233; Myers v. Hol1. Where a son, who stands in the relation of

born, 58 N. J. Law, 193, 33 Atl. 389, 30 L. a servant to his father, is disabled by the tortious act of another, the father may maintain

R. A. 315, 53 Am. St. Rep. 606; Fitzhenry an action per quod servitium amisit against v. Consolidated Traction Co., 63 N. J. Law, the tort feasor, and therein recover the dam 142, 42 Atl. 416. But in the present declaraages sustained by him during the son's lifetime,

tion there is no claim for compensation by notwithstanding that in consequence of the same tortious act the son dies at a later time.

reason of the death of the plaintiff's son. It (Syllabus by the Court.)

appears that death did not result instantly

from the injury sustained, as in the Grosso Action by Philip G. Callaghan against the

Case; but, on the contrary, that the plainLake Hopatcong Ice Company. Demurrer to

tiff's son lived for some time after he was declaration. Overruled.

hurt. The claim is (a) for the cost of medical Argued November term, 1902, before GUM

attendance during his life; (b) for the burial MERE, C. J., and VAN SYCKEL, FORT,

expenses; and (c) for the loss of the servand PITNEY, JJ.

ices of the son from the date of the injury B. W. Endicott, for plaintiff. Colie & Duf until the time when he would have attained field, for defendant.

the age of 21 years.

For the burial expenses it is plain there PITNEY, J. This is an action of tort, and can be no recovery. They could not be rein the declaration the plaintiff is described covered even by the personal representative. as “Philip G. Callaghan, the father of Wil Consolidated Traction Co. v. Hone, 60 N. J. Liam H. Callaghan, a minor, deceased.” There

Law, 444, 38 Atl. 759. is no averment that the plaintiff has letters As to the loss of services, we are of opinof administration upon the estate of his son. ion that a father may recover these, if a son The declaration sets forth that the defend who stands to him in the relation of a servant employed the said William H. Callaghan ant is disabled by reason of the tortious act to work in and about a certain icehouse and of another, notwithstanding that in consethe structures connected therewith, for hire, quence of the same act the son dies at a paid by the defendant to the said William later time. The damages, however, must, of H. Callaghan, and that by reason of the neg course, be confined to the period of the son's ligence of the defendant in and about the life, and will not extend to his expected construction and operation of the machinery majority, if death sooner occurred. The acand appliances of said icehouse the said Wil tion for damages, per quod servitium amisit, liam H. Callaghan received certain personal pertains to the relation of master and servinjuries, from which he afterwards died; that ant, and not to the mere relation of parent at the time of his death he was a minor, and child. Coon v. Moffet, 3 N. J. Law, 583, under the age of 21 years, and that the 4 Am. Dec. 392; Van Horn v. Freeman, 6 plaintiff is the father of the said William H. N. J. Law, 322; Sutton v. Huffman, 32 N. Callaghan, and by reason of the premises J. Law, 58; Ogborn v. Francis, 44 N. J. was forced to expend, and did necessarily Law, 441, 43 Am. Rep. 394. In an action expend, certain moneys for medical attend tried before Lord Ellenborough in 1808, where ance upon the son between the time of his

a part of the damages claimed by a husband injury and the time of his death, and certain was for the loss of consortium of his wife, other moneys in and about the burial of the who was injured through defendant's neglison; and that as the father of the said Wil gence, and died from her injuries about one liam H. Callaghan the plaintiff has been de- | month later, the learned judge instructed the prived of his services from the date of his jury to limit these damages to the period that injury until the time when he would have intervened between the time of the accident attained the age of 21 years, and has sus and the time of the wife's death. Baker v.

Bolton, 1 Campb. N. P. 493. In 20 Am. & GARRETSON, J. The plaintiffs brought Eng. Encyc. Law (2d Ed.) tit. “Master & suit to recover the amount due on a promisServant,” p. 184, the rule is thus expressed: sory note made by Moreland Bros. to the order "In case the servant dies shortly after the of Elliott Bros. & Co., the plaintiffs, and ininfliction of the injury, the right of the mas dorsed by Johanna Moreland, one of the de ter to recover is limited to the loss of serv fendants. The suit is against John Moreland ices sustained between the time of the ac and Leonard Moreland, partners as Moreland cident and the death of the servant."

Bros., and Johanna Moreland, who is a marWith respect to the expenses alleged in ried woman. John and Leonard Moreland this declaration to have been necessarily in- | having been adjudicated involuntary bankcurred for medical attendance upon the in- rupts, the action was dismissed as to them, jured son, we see no reason why they may and judgment rendered against Johanna Morenot be recovered, if the relationship of mas land for the amount of the note. This judgter and servant existed, notwithstanding the ment she seeks to have reversed. doubt intimated on this point in Hall v. Hol The note arose under the following circumlander, 4 Barn. & Cres. 660. In actions for stances: The firm of Moreland Bros. was inseduction of a daughter and servant, the debted to the plaintiffs for paints and matelying-in expenses are commonly allowed to rials delivered to them between July 12 and be recovered. 2 Chitt. Plead. 643, and note. October 18, 1901, and made this note to pay

The declaration before us shows that the the bill. Johanna Moreland indorsed the note party injured was the plaintiff's minor child, before its delivery under the following cirand that by reason of the hurts sustained cumstances: The note was made and signthrough defendant's negligence the plaintiffed by Moreland Bros., and tendered to the has been deprived, during some period, of plaintiffs, who refused to accept it without the son's services. The right of the father "additional security.” One of the Moreland to the son's services is to be presumed from Bros. thereupon took the note to his mother, the minority of the latter, unless emancipa the defendant Johanna Moreland, and told her tion appears.

Van Horn v. Freeman, 6 N. to sign it, with which command she complied, J. Law, 322; Noice v. Brown, 39 N. J. Law, and the note was then again tendered to the 569. Although the declaration shows that at plaintiffs, who further asked for and obtained the very time of the occurrence in question a certificate signed by Johanna Moreland that the son was in the employ of the defendant, the note in question was a genuine business for hire paid by the defendant to the son in note, given for value received, and that there that behalf, it does not follow that the son is no defense to the same either in law or eg. had been emancipated. The employment un uity. The note was irregularly indorsed by a der the defendant may have been for a lim married woman before its acceptance by the ited time and purpose.

payee. In Building Society v. Leeds, 50 N The plaintiff is entitled to judgment on the J. Law, 399, 18 Atl. 82, 5 L. R. A. 353, it was demurrer.

held that the signing of a nonnegotiable note by a third party while such note is in the

hands of the maker of it, does not, when pass (69 N. J. L. 216)

ed to the payee, import per se any contract ELLIOTT et al. Y. MORELAND.

on which a suit will lie, and that the produc(Supreme Court of New Jersey. Feb. 24,

tion of such a note without proof other than 1903.)

itself will not sustain an action against such

indorser. Chaddock v. Vanness, 35 N. J. NOTE-INDORSEMENT-SURETYSHIP-CROSSEXAMINATION.

Law, 517, 10 Am. Rep. 256, holds that the 1. The signature of a third party on the back signature of a third person on the back of a of a promissory note, before it was put in cir negotiable note before it was put in circulaculation by the maker, neither expressed nor tion by the maker neither expressed nor imimplied any contract, but a contract might be plied by its own intrinsic signification any conshown by evidence.

2. The evidence in this case is not sufficient tract whatever on the part of such indorser. to show a contract of suretyship.

Parol evidence was held to be admissible to 3. When a party produces in evidence his

show what the agreement between the parties books of original entry, the defendant is entitled to cross-examine him as a party as to the

was. entries therein without any subpæna duces The plaintiffs in this case claim that Johantecum for that purpose.

na Moreland signed the note as surety, and (Syllabus by the Court.)

to prove the contract of suretyship rely upon Certiorari to district court.

two circumstances: First, the making of the

certificate above mentioned; second, that some Action by Avery M. Elliott and others

of the items of the bill which the note was against Johanna Moreland. Judgment for

given to pay went into the construction of a plaintiffs, and defendant brings certiorari.

house belonging to her, and that by accepting Reversed.

the note the payees postponed payment for Argued November term, 1902, before GAR

these items for so long a time that they lost RISON and GARRETSON, JJ.

their right to file a lien claim for them upon George P. Rust, for prosecutor. Addison P. her building. As to both of these circumstanRosenkrans, for respondents.

ces there is not a word of testimony to show

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