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not enough to say there was some evidence. DIXON, J. The plaintiff, a brakeman in A scintilla of evidence or mere surmise that the employ of the defendant, fell, and was inthere may have been negligence on the part jured while descending from a box car in of the defendant clearly would not justify the defendant's yard at Weehawken. The the judge in leaving the case to the jury. cause of his fall was that the fastening of the There must be evidence on which they might grab iron on top of the car gave way as he reasonably and properly conclude there was threw his weight upon it. The evidence negligence.” To the like effect is the de tended to show two defects in the fastening cision in Cadwell v. Arnhein, 152 N. Y. 182, -one, the use of a screw running less than an 190, 46 N. E. 310. See, also, Rigg v. The inch into the wooden roof, instead of a larger Manchester, S. & L. Railway Company, 12 screw, or a bolt running entirely through the Jur. (N. S.) 525.

roof, and held by a nut underneath; the othThere was also error in that part of the er, deterioration of the wood through which charge which assumes, without proof, as we the screw ran, indicated by the fibers adthink, that the platform stopped at the edge | hering to the thread of the screw after it of the graveled surface, where it meets the was wrenched away. It was proved that the planking along the rail, and was not, as it car did not belong to the defendant, but was scems, from the facts developed, to be only the property of the Chicago & Erie Railway a part of one construction, which served as Company, an Indiana corporation owning a platform for trains on both of the tracks. and operating a railroad from Hammond, Such a designation by the court would lead Ind., to Marion, Ohio; that at 12:10 a. m. on the jury to assume, without evidence, that June 2, 1901, the car arrived loaded at Port the company had fised the danger line at Jervis, coming in a train of 60 freight cars that point 18 inches from the rail, and thus from the west over the Delaware Division on enlarged, to a degree, the company's liability the defendant's road; that it was there infor the safety of the passenger.

spected by the defendant's inspectors, found We also think that, so far as the question satisfactory, and made up by the defendant of faulty construction of the platform is con in another train, which left Port Jervis at cerned, a verdict should have been directed 9:30 that evening, and reached the Weehawfor the defendant.

ken yard at 10:55 the next morning. The The result is that the judgment below accident happened about noon the same day. should be reversed, and a venire de novo is There is no direct testimony in the case as to sued.

where, or by whom, the car was loaded, but we think the only legitimate inference is that

it came loaded into the possession of the de(68 N. J. L. 647)

fendant for transportation by it as a common ANDERSON V. ERIE R. CO.

carrier. The fact that it was the property (Court of Errors and Appeals of New Jersey. of another owner rebuts any presumption March 2, 1903.)

which might arise from possession that it RAILROADS-INJURY TO BRAKEMAN-NEGLI was used by the defendant in its own busi

GENCE. 1. The plaivtiff, while acting as a brakeman further fact that when it first appears in the

ness, and this rebuttal is strengthened by the in the employment of the defendant, fell from the roof of a freight car, and was injured. defendant's possession it was fully loaded, The cause of his fall was that the grab iron on and was afterwards handled by the defendthe roof pulled out the screw which held it, ant merely for transportation. The general as he threw bis weight upon it in descending, the defects being the insutliciency of the screw

principles of the law cast upon the plaintiff and the deterioration of the wood. The car the burden of proving the duty of the defendbelonged to the Chicago & Erie Railway Com- ant, and we think he sustained this burden pany, and first appears in the evidence as arriving loaded at Port Jervis in a freight train

only to the extent of such duty as rests upon which came from the west over the Delaware a railroad company which receives a loaded Division of the defendant's railroad. After car of another owner, to be hauled by the wards it was hauled by the defendant to Weehawken, where the accident happened. Held:

company to the place of destination. The (1) It must be inferred against the plaintiff

nature of that duty has been the subject of that the car was received by the defendant considerable judicial comment. 20 Am. & loaded for transportation by it as a common Eng. Enc. Law (2d Ed.) 80. All authorities carrier. (2) The defects complained of were not such as, under the circumstances, the de

agree that it requires the exercise of reafendant was bound to guard against.

sonable care for the safety of employés, but (Syllabus by the Court.)

they are not all agreed as to the nature of

the care demanded. Sometimes it has been Error to Supreme Court. Action by Milton Anderson against the

held that the duty was coextensive with the Erie Railroad Company. Judgment for

duty of the company respecting its own cars. plaintiff. Defendant brings error. Revers

O'Neil v. St. Louis, etc., Ry. Co. (C. C.) 9 ed.

Fed. 337, 3 McCrary, 423; Felton v. Bullard,

37 C. C. A. 1, 94 Fed. 781; Jones v. N. H. Warren Dixon, for plaintiff in error. Cor

& H. R. R. Co., 20 R. I. 210, 37 Atl. 1033. bin & Corbin, for defendant in error.

In Massachusetts the rule is said to require f 1. See Master and Servant, vol. 34, Cent. Dig. $

only the employment of competent inspectors, who are to be deemed fellow servants of

195.

those managing the train, and for whose all damages to animals coming in its tracks neglect, therefore, the company is not re

by reason of a failure to erect such a fence sponsible to its employés. Mackin v. Boston

as is thereby required. After such a fence has

.been erected, it will be liable for failure to & Albany R. R. Co., 135 Mass. 201, 46 Am. maintain the fence, when the failure is atRep. 456; Bowers v. Conn. River R. R. Co., tributable to a neglect of duty in that regard. 162 Mass. 312, 38 N. E. 508. We think, how

2. The duty to maintain such a fence involves

the duty of reasonable inspection and observaever, that the weight of reason and authority

tion to discover the need of reparation. The is in favor of these propositions: First. duty of inspection, its frequency, etc., must deThat on receiving a car for transportation,

pend upon circumstances. Proof of a recent the company is entitled to assume that the

break, of which the company had no actual

notice, and which such inspection as reasonacar had been properly constructed of suitable

ble care would have required would not have materials for all the purposes for which the disclosed, might fail to establish a case for a owner intended it to be used. Ballou v. Chi. jury. cago, etc., R. R. Co., 54 Wis. 259, 11 N. W.

3. But where the company permits the land

adjoining the fence to be used in the conduct 559, 41 Am. Rep. 31; Gutridge v. Mo. Pac. of its business in a mode which imperils the Ry. Co., 94 Mo. 468, 7 S. W. 476, 4 Am. St. fence, it is a question for a jury whether the Rep. 392. Second. That on receiving the car

duty of inspection does not require more fre

quent and particular observation, adapted to the company is bound to make such examina

disclose any break bappening from such use. tion as would be likely to discover condi (Syllabus by the Court.) tions rendering a car so constructed unfit for safe transportation on the company's line.

Error to Supreme Court. This examination has been called a "cursory

Action by William C. Hendrickson against examination," an examination not of a very

the Philadelphia & Reading Railway Comminute character (Richardson v. Great East

pany. Judgment for plaintiff. 52 Atl. 232. ern Ry. Co., 1 C. P. Div. 342), an inspection

Defendant brings error. Affirmed. for defects visible or discernible by ordinary James J. Bergen, for plaintiff in error. examination (Eaton v. N. Y. Cent. & H, R. Dungan & Reger, for defendant in error. R. Co., 163 N. Y. 391, 57 N. E. 609, 79 Am. St. Rep. 600; Gottlieb v. N. Y., Lake Erie MAGIE, Ch. This is an action to recover & W. R. R. Co., 100 N. Y. 466, 3 N. E. 344; compensation for a mare belonging to the Dooner v. Del. & Hud. Canal Co., 164 Pa. plaintiff, which was killed by a train of 17, 30 Atl. 269; Balt. & Pot. R. R. Co. v. the defendant company, ruuring on the railMackey, 157 U. S. 72, 15 Sup. Ct. 491, 39 L. road tracks leased by it of the Delaware & Ed. 624). And, third, that, at convenient pla Boundbrook Railroad Company. The declaraces during the journey the company is bound tion charged the defendant with negligence to make the same inspection and tests of in the performance of the duty of erecting such a car as it should make of its own car and maintaining a fence along the plaintiff's for the purpose of discovering defects likely field adjoining the railroad operated by the to occur in the course of transportation. Un

defendant, whereby the mare escaped from der these rules we are unable to discern any the field, and went on the railroad tracks, evidence of fault in the defendant contribu

and was there killed. The plea was the ting to the plaintiff's accident. The defect of general issue. which he complains respecting the screw The bill of exceptions discloses that counused to fasten the grab iron was one in con sel of defendant admitted at the trial that struction, which the defendant had a right the Delaware & Boundbrook Railroad Comto assume did not exist; and the same state

pany was organized under the “Act to aument is probably true regarding the unsound thorize the formation of railroad corporaness of the wood. Neither of these defects tions and regulate the same," approved April was discoverable by ordinary inspection, or 2, 1873 (2 Gen. St. p. 2638). By section 32 by anything short of a very minute examina of that act a liability is impos on cortion, and neither of them could occur in the porations organized thereunder in language course of transportation.

which, so far as is important in this case, We therefore conclude that the motion to

is as follows: "That every corporation formdirect a verdict for the defendant should have ed under this act shall erect and maintain been granted, and because of its refusal the

fences on the sides of their road, of the judgment of the plaintiff must be reversed, height and strength of a division fence reand a venire de novo awarded.

quired by law.

Until such fences shall be duly made, the corporation

and its agents shall be liable for all dam(68 N. J. L. 612)

ages which shall be done by their agents or HENDRICKSON v. PHILADELPHIA & R.

engines, to cattle, horses or other animals RY. CO.

thereon; and after such fences (Court of Errors and Appeals of New Jersey. shall be duly made and maintained, the corMarch 2, 1903.)

poration shall not be liable for any such dam RAILROADS-INJURY TO STOCK-FENCES ages unless negligently or willfully done."

INSPECTION. 1. By section 32 of the general railroad act

The language used to express the legislative (Gen. St. p. 2646) an absolute liability is im

intent in this enactment is, perhaps, not very posed on a corporation organized thereunder for | happily chosen, but the intent, I think, can

*

be discovered. In the first place, a positive height and strength had been erected on the duty is imposed on the railroad corporations line where the land of the plaintiff and the organized under the act not only to erect, track used by the defendant joined. Tlie bụt also to maintain, fences along their sole contention was that there had been a tracks, of a specified height and strength. break in the fence, which it was the duty of In the next place, the liability of a corpo the defendant to repair, and that it had failration which does not perform the duty of ed in the performance of that duty. The erection is an absolute one, and is for all duty to make reparation of such a fence will damages done to animals on its road by it; arise upon notice to the company that the the liability being impliedly restricted to in reparation is necessary. There is also in. juries to animals which come upon the track volved and included a duty of such inspecby reason of the failure to erect the required tion and observation as prudence requires to fences. The language which follows, viz., ascertain when such reparation is necessary. "and after such fences

shall be When the break is very recent, and the railduly made and maintained, the corporation road has no actual notice thereof, and such shall not be liable for any such damages inspection and observation as prudence re unless negligently or willfully done,” may quired would not have disclosed it, the quesbe construed to limit the company's liability tion of negligence may, at times, be a quesfor damages when it has not only erected, tion of law, to be disposed of by a combut has properly maintained, fences of the pulsory nonsuit. But when the proofs show required height and strength, to those done that the break was not recent, or, although willfully or negligently. But this construc recent, that it would have been discovered tion leaves the enactment without any pro by such inspection and observation as were vision imposing a liability on the company required under the circumstances, it must be for failing to maintain fences, except by an a question for a jury whether the company's implication from the express imposition of duty in that respect has been performed. that duty. Moreover, it has always been a The assignment of error in this case is conquestion whether a railroad company owes tined to the ruling of the trial judge in reany duty with respect to animals which fusing a compulsory nonsuit at the trial, and have strayed upon its tracks, except to re it is here contended that the plaintiff's case frain from willfully injuring them. Case v. disclosed no evidence of negligence proper C. R. R., 59 N. J. Law, 471, 37 Atl. 65, 59 to be submitted to a jury. The circumstanAm. St. Rep. 617. It can scarcely be con ces upon which the trial judge was required ceived that it was the legislative purpose to to act were these: The fence in question had deal with the company's negligence in re been erected parallel to, and 29 feet distant spect to the running of its trains and other

from, the north rail of a spur or siding mainacts of that sort, and impose liability there tained and used by the defendant. Upon for, and not include its negligence in main this siding the company was accustomed to taining the fences as required, and impose a place freight cars, with freight of various like liability therefor. In my judgment, it sorts, consigned to persons in that neighboris more reasonable to construe the section as hood. The siding was parallel with the main regulating, by implication, the liability of tracks of the railroad, and so near the north the company in case of failure to maintain

track that consignees could not approach and the fences as required, and imposing such take their freight from the cars on that side. liability only when it has been negligent in It was, therefore, the custom for the conthe performance of its duty in that regard. signees to approach the cars on the north Such a construction is possible, and it seems side, in the space of 29 feet between the to have been that given this enactment by north rail and the fence, which space was Chief Justice Beasley in Van Duzer diminished, when the siding was occupied Lehigh & Hudson River R. R., 58 N. J. Law, by freight cars, by the ordinary overhang of 8, 32 Atl. 376. The issue was tried in the the cars, which was about 2 feet and 3 circuit upon this construction of the section, inches. From the evidence the jury could and no contention was then made, and none infer that from the configuration of the has been made here, that challenges its cor ground and various obstacles thereon the rectness. But, as the language of the act is farm wagons employed in carting such peculiar, it has been deemed best to state our freight from the cars could not drive through views in respect to its construction.

without turning, but were compelled to turn Nor has there been any contention but in the space thus left. It appeared that such that the defendant company (which was farm wagons measure a little over 23 feet shown to be the lessee of the Delaware & from the rear end to the end of the pole. It Boundbrook Railroad Company for a term could, therefore, be fairly inferred that in of 999 years) is liable for the obligations and turning such a wagon within the space left, duties imposed on its lessor by this legisla there was obvious danger that it might imtion. At the trial it was not contended that

pinge upon and break down the fence. There there had beeu any breach of the statutory was proof that marks appeared on some of duty in respect to the erection of the fence the rails at the break in the fence which in question. It was apparently conceded might have been made by the wheel of a that a post and rail fence of the required wagon strikiug them. The evidence of plain.

v.

tiff further disclosed that the fence in ques have been obscured from his observation by tion was intact and unbroken on the morning the freight cars on the siding, and would not of a certain day. Later, on the same morn have been seen by him unless he had left the ing, and again in the afternoon of the same track, which he did not do. This evidence day, it was observed to have been broken did not cure the previous defect, because, asdown. This observation was made by sev. suming its truth, it was obviously a question eral persons engaged in taking freight from for the jury whether his inspection was such the cars that were then standing on the sid as it was the duty of the company to make ing. One of the posts bad been split in two, under the circumstances that appeared. and one part lay on the ground in the field. The trial judge committed no error in reThe other part remained standing, but the fusing to nonsuit the plaintiff, and the Surails, or some of them, had been released, preme Court rightly affirmed the judgment and the ends of them, or some of them, had of the circuit. The judgment of the Supreme fallen to the ground in the field, so as to Court must, therefore, be affirmed. leave a break through which it was practicable for animals to pass. In the evening of that day the horses of plaintiff were turn

(68 N. J. L. 732) ed out to pasture, and had the range of sev.

BAKELY et al. V. NOWREY. eral fields, one of which was the field ad.

(Court of Errors and Appeals of New Jersey. joining the railroad track. It was a fair in

March 2, 1903.) ference from the circumstances that the APPEAL AND ERROR-CERTIORARI-PRESEN. mare in question had escaped through the TATION OF QUESTIONS AT TRIAL-COURT OF

ERRORS AND APPEALS-REVIEW. break in the fence, and had been run down

1. Questious which have not been mooted in by an engine passing upon one of the tracks

the Supreme Court on a writ of certiorari to used by the defendant, where her body was review the removal of police officers of a city found the next morning.

will not be considered by the Court of Errors Upon these circumstances there was, in

and Appeals on writ of error to the Supreme

Court to review its judgment. my judgment, a plain question for the jury, and it would have been erroneous to have

Error to Supreme Court. withdrawn it from them. It is true that the

Certiorari by the state, on the prosecution break in the fence was recent, and there was

of Samuel Bakely and another, against Jono evidence of actual notice of it given to

seph E. Nowrey, to review an order of the any agent of defendant. It was so recent

mayor of Camden removing prosecutors from that, if it had occurred elsewhere, and un

the police force of said city. From an order der ordinary circumstances, a question would

of the Supreme Court (52 Atl. 289) vacating have arisen whether the company could have

such order, respondent brings error.

Al

firmed. been charged with knowledge of it, or with neglect because it did not discover it. But, Howard Carrow, for plaintiff in error. E. in view of the use of the land adjoining the G. C. Bleakly, for defendants in error. fence permitted by the defendant company to be made by its licensees in the conduct PER CURIAM. The defendants in error of the company's business, and the obvious sued out a writ of certiorari to review the risk of injury to the fence by such use, it legality of the action of the mayor of the was a question whether reasonable prudence city of Camden in discharging each of them did not require the company to inspect and from the police force of that city. Two ques. observe the fence during, or at least directly tions were submitted to, and decided by, the after, such use. That question was not for Supreme Court: First, whether the prosethe court, but was a question for the jury. cutors were, at the time of their discharge, It was for the jury to say whether or not, members of the police department; and, sec. when the company, by the mode it used the ond, if they were, then whether their disland adjoining the fence, or permitted it to charge was legal. Both of these questions be used, put the fence in peril, it was not were resolved in favor of the defendants in bound to take such precaution as would dis error, and their discharge was set aside. close a break thus made which required rep We concur in the conclusion reached by the aration,

Supreme Court, and in the reasons upon After the nonsuit had been refused, de which these conclusions were rested, as set fendant proved that it employed a track out in its opinion. walker to pass over the railroad along this Whether certiorari is the proper remedy by locality twice a day, and that it was part of which to review the action of the mayor in his duty to observe the fences along the line. discharging a police officer, and, if so, whethThe man thus employed testified that he er it is proper practice to permit both of passed this locality twice on the day in ques these illegal discharges to be reviewed by tion, and observed no break in the fence. one and the same writ, we do not decide. Rut it appeared by his examination that he Those questions, not having been mooted in passed down upon one track and returned the Supreme Court, should not be considered on the other track, and that the break might here on review.

54 A.-53

JJ.,

(68 N. J. L. 651)

is no evidence that in that transaction the ATLANTIC CITY V. THORNHILL. bell boy was the plaintiff's agent, that the ti. (Court of Errors and Appeals of New Jersey.

tle to the beer was ever vested in her, or that March 2, 1903.)

she ever held herself out, or authorized any INTOXICATING LIQUOR-ILLEGAL SALE.

person to hold her out, as having beer for 1. The evidence set forth in the record of sale. The testimony was, therefore, incapaconviction in this cause is legally incapable of ble of sustaining the adjudication that she sustaining the conclusion that the plaintiff in

had sold the beer, or offered it for sale. error sold beer or offered it for sale.

The judgment of the Supreme Court and Magie, Ch., Gummere, C. J., and Van Syckel, Hendricksou, and Pitney, JJ., dissenting. the conviction by the recorder should be re(Syllabus by the Court.)

versed. Error to Supreme Court.

MAGIE, Ch., GUMMERE, C. J., and VAN Mary C. Thornhill was convicted of selling

SYCKEL, HENDRICKSON, and PITNEY, beer, and brings error. Reversed.

dissent. George A. Bourgeois, for plaintiff in error. Godfrey & Godfrey, for defendant in error.

(68 N. J. L. 661) DIXON, J. Before the recorder of At

MARSH V. EDGE. lantic City the plaintiff in error was sum (Court of Errors and Appeals of New Jersey. marily convicted of selling and offering to

March 2, 1903.) sell and deliver brewed liquors in quantities LIBEL-PLEADING-COMPENSATORY DAMAGES. of one quart or more without a license, in

1. When the plaintiff alleges in his declaraviolation of a city ordinance, and was fined tion for libel that he is injured in his good $150. On certiorari the conviction was af name, fame, and credit among his neighbors firmed in the Supreme Court. The ordi. by the alleged libelous publication, and hence

is damaged, he is entitled to recover compennance imposes a penalty on only those per

satory damages, notwithstanding the provision sons who sell or offer for sale, and the pri of the act entitled "An act relating to libel," mary question suggested on examining the approved June 13, 1898 (P. L. p. 476). case is whether the evidence set out in the

2. Under such a declaration he can recover

his actual damages. “Actual damages_specialrecord of conviction affords legal support for ly alleged,” as used in the statute of June 13, the conclusion reached in the trial court. 1898, mean such as would be compensatory The indisputable facts are that the plaintiff

damages at common law. Stuart y. News Pub

lishing Co., 51 Atl. 709, 67 N. J. Law, 317, in error is one of the proprietors of a house

followed. in Atlantic City called the “Waldorf"; that

(Syllabus by the Court.) on the evening of August 27, 1900, two detectives engaged a room in the house, and at

Error to Supreme Court. 9:55 o'clock rang the bell for the bell boy;

Action by John C. Marsh against Walter

E. Edge. that on his appearance they ordered two bot

Judgment for plaintiff, and detles of beer, and the bell boy forthwith in

fendant brings error. Affirmed. formed the plaintiff of the order; that, after Harry Wooten, for plaintiff in error. Thompsome hesitation and discussion with him, she son & Cole, for defendant in error. loaned the bell boy 30 cents, with which he went to a neighboring store, and bought the FORT, J. This was an action for libel, beer, and that when he delivered it at the tried at the Atlantic circuit, resulting in a room the detectives paid him for it, and he verdict in favor of the plaintiff for $125. returned to the plaintiff what he had bor There are no assignments of error founded rowed; and shortly afterwards they rang on admissions of evidence, and reference again for the bell boy, and ordered of him need be made only to the first assignment of two more bottles, which he likewise bought error in determining the question here raisat a neighboring store, using his own money ed. This assignment is, “Because the trial in the purchase; that on delivering the beer court refused to nonsuit the plaintiff, because to the detectives they handed him a $5 bill the plaintiff had not proved malice in fact, out of which to take payment; that on his and had not demanded in writing a retracapplication to the plaintiff she refused to tion from the defendant, Walter E. Edge, of change it, and the bell boy returned it to the matters alleged to be libelous, as rethem, but the next morning, when paying quired under the act entitled 'An act relating the room rent, they paid also for the beer, to libel,' approved June 13, 1898 (P. L. p. and the price was at once turned over to the 476).” The contention of the defendant is bell boy. Before the recorder the plaintiff that under the act referred to there can be testified that she never sold a bottle of beer no recovery in an action for libel, except in her life; never had any to sell.

there be proof of express malice, unless the The only legitimate conclusion from the plaintiff has made demand in writing for a facts above stated is that the seller of the retraction of the libelous article as published beer was the proprietor of the neighboring in the newspaper, and which is alleged as store, that the detectives were the buyers the basis of the action. To give the statute directly from him, and that the bell boy was the construction contended for would be to their agent in procuring the purchase. There defeat the right of the plaintiff to recover

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