case before it reasonable care was a high de- | been entitled by a proper request to have the gree of care. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 639; Dec. Dig. 256(12).] 2. NEGLIGENCE 4-"REASONABLE CARE." [Ed. Note. For other cases, see Negligence, Cent. Dig. § 6; Dec. Dig. 4. For other definitions, see Words and Phrases, First and Second Series, Reasonable Care.] Appeal from Circuit Court, Hudson County. Action by Hattie Blumenfeld and others against the Hudson & Manhattan Railroad Company. From a judgment for defendant, plaintiffs appeal. Judgment affirmed. Warren Dixon, of Jersey City, for appellants. Collins & Corbin, of Jersey City, for appellee. GARRISON, J. In an action for damages for personal injuries, the defendant had the verdict and judgment. The negligence charged was as follows: "Said plaintiff Hattie Blumenfeld proceeded to enter the door of said second train for the purpose of such transportation in the usual manner provided by said defendant, and while in the act of entering the same, and while partially through the said doorway, and partially upon said car, the guard and agent of said defendant suddenly closed, or caused to be closed, the said door, and in closing same struck the said door against the body of the said plaintiff, Hattie Blumenfeld, and caught and squeezed her in said doorway, and caused the said door to strike plaintiff, Hattie Blumenfeld, on the abdomen and side." [1, 2] The plaintiffs appealed, and the sole ground for reversal argued by their counsel is thus stated in his brief: "The court erred in charging the jury that 'the duty of the defendant company through its agents and servants was and is to use reasonable care for the safety of its passengers upon its station platforms and as they enter and leave their cars.'" jury instructed that in the case before it reasonable care was a high degree of care. It may be that the denial of such a request would have been error. That question, however, is not before us; there was no such denial, and there was no such request. The objection was to what the court had charged, but this was not erroneous. In noting this objection counsel said: "I desire to note an objection to so much of your honor's charge as stated the duty of the defendant toward the plaintiff, in that your honor charged that the duty was to use reasonable care, whereas my contention is that, if that be the duty, such duty is a high degree of care." This merely states the ground of objection to the charge, which has been considered and determined to be without merit. The judgment of the circuit court is affirmed. 1. HOMICIDE LARATIONS. 218-EVIDENCE-DYING DEC Where a dying declaration is offered in evidence, the preliminary question of fact whether the declarant was under a sense of impending death is for the determination of the trial court; but, when the declaration has been admitted, the questions of fact as to what the declarant said and what his mental and physical condition was at the time are for the jury. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 458, 459; Dec. Dig. 218.] 2. WITNESSES 393(3) IMPEACHMENT OF MODE. A witness may be contradicted or impeached by testimony previously given by him before the grand jury. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 1254; Dec. Dig. 393(3).] 3. PRECEDENTS-OVERRULING. The case of Imlay v. Rogers, 7 N. J. Law, 347, overruled. 4. WITNESSES 380(5)—IMPEACHMENT-CON There was no error in the legal proposition thus charged. Reasonable care is the proper description and designation of the duty that is imposed by law under certain conditions; it covers the entire range of such duty. Whether under the circumstances of a given case the degree of care that is reasonable be high or low, it is imposed by law solely upon the ground that it is reasonable; e. g., in the storing of dynamite near human habitations the care that is reasonable is of the very highest degree, while in the dumping of sand on a vacant lot the care that is reasonable is by comparison of the very lowest decide, and he brings error. Affirmed. gree, and yet equally and in either case the care appropriate to the danger is imposed by law upon the ground that is reasonable. Gellatty v. Central R. R. Co., 86 N. J. Law, 416, 92 Atl. 279. TRADICTORY STATEMENTS. Where a witness has volunteered testimony statements by the witness made elsewhere may inimical to the party that called him, contrary be shown, not for the purpose of impeaching the witness, but for the purpose of neutralizing the effect of his testimony. The language therefore of the charge was a correct statement of the law. It does not follow that the plaintiff below may not have Cent. Dig. §§ 1214, 1219; Dec. Dig. 380(5).j Vincenzo Bovino was convicted of homi McDermit & McDermit, of Newark, for plaintiff in error. Frederick F. Guild and Andrew Van Blarcom, both of Newark, for the State. GARRISON, J. [1] The plaintiff-in-error, Vincenzo Bovino, commonly known as Jimmy Bennett, was indicted for the murder of Frank Miserentino, commonly known as Frank Baker, who, on the night of April 21, 1914, was shot and killed in a dance hall in the city of Newark. The affirmative defense of the accused was an alibi. At the trial witnesses for the state testified that a few moments before his death Baker in answer to the question, "Who shot you?" said, "Jimmy Bennett," which was admitted in evidence as a dying declaration. The argument of counsel in support of the contention that it was error to admit this declaration is partly addressed to the admissibility of the testimony and partly to its credibility or force. With respect to the admissibility of proof as to a dying declaration the rule stated by this court in the case of State v. Monich, 74 N. J. Law, 522, 64 Atl. 1016, is as follows: "Where a dying declaration is offered in evidence, the preliminary question of fact whether the declarant was under a sense of impending death is for the determination of the trial court, and its finding, if supported by any legal evidence,, is not reviewable by ordinary writ of error. State v. Monich was here on a strict writ of error. The present case is under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), as well. Whether the scope of review is thereby broadened need not be decided, since the judicial action in the present case was correct under either method of review. It is true that the statement of Baker, "I am going to die," standing alone, was not conclusive proof that he was under a sense of impending death; it might mean that, or it might be the statement of a mere truism. The statement, however, did not stand alone; its concomitant circumstances showed, or so a court might find, in what sense the words were used. These circumstances were the persistent refusal of Baker, as long as he had hopes of living, to say who shot him; the sending at midnight for the officer at Baker's request; the reception of the last rites of the church; the fact that he was vomiting blood, and that in the opinion of those about him he was dying; and the fact that a few moments after making the declaration he was dead. Not only was there legal testimony to support the finding that rendered the declaration of the deceased admissible, but such finding was amply justified by the weight of the testimony if this latter question be deemed to be before us. Having admitted the testimony as to what Baker said, the court properly left it to the jury to determine its truth and the weight to be accorded to it. This included not only the accuracy and truthfulness of the testimony as to what Baker said, but also Baker's bodily and mental condition at the time. This covers a number of assignments and specifications that were separately argued. to the jury the question upon which the admissibility of the dying declaration depended, and for such an argument there would be no foundation in fact; hence the second point decided by State v. Monich is not involved. There was no error in the manner in which the offer of the dying declaration was dealt with by the trial court. [2-4] Anna Mae Gilling, a witness called by the state, having testified that she was in the dance hall at the time of the shooting, was asked to tell what happened. After answering this question in detail, she volunteered the statement: "But I did not see Jim Bennett in the hall at the time of the shooting." To enable the jury to determine what weight, if any, they should give to this irresponsive testimony, the clerk of the grand jury was sworn, and testified that Anna Mae Gilling had testified before the grand jury that when she heard the shot she looked in that direction, and saw Bennett standing at the saloon door three or four feet away. Counsel for plaintiff in error argues that upon grounds of public policy it was error to admit proof of testimony given before the grand jury, citing as an authority in this state Imlay v. Rogers, 7 N. J. Law, 347. Upon a comprehensive examination of this question Prof. Wigmore reaches the conclusion that: "It is now universally conceded that a witness may be impeached in any subsequent trial, civil or criminal, by self-contradictory testimony given by him before the grand jury.' Wigmore on Evidence, p. 2363. In this conclusion of Prof. Wigmore we concur even as to the prophetic note in which he says: "The early doubt in New Jersey would today be repudiated. Imlay v. Rogers." Imlay v. Rogers was a rule to show cause why a new trial should not be granted in a trespass case tried in 1799 before Mr. Justice Kirkpatrick, who refused to admit a member of the grand jury to prove that a witness had sworn differently. On the question whether the rule should be made absolute Chief Justice Kinsey and Justice Smith voted "Yes" and Justices Kirkpatrick and Boudinet voted "No." There was no opinion (the court being divided), and there is no way of knowing whether the justices who voted in the negative did so upon the proposition as to the grand jury or upon some other ground that properly enters into the question of granting a new trial. If the case is to be regarded as an authority for the proposition that the testimony of a witness before the grand jury cannot be put in evidence for purposes of contradiction and impeachment, it is against sound reasoning and the overwhelming weight of authority, and must be regarded as definitely overruled. The other ground of objection is that it was error "to permit the prosecutor to im curate statement of what the court permit-12. Master and SERVANT 358-INJURIES TO ted to be done, and, as this matter was dealt SERVANT WORKMEN'S COMPENSATION ACT. with in the charge of Judge Martin with adWhere a minor employé received his pay in an envelope upon which were printed words mirable clearness and precision, his language warning him that the provisions of the act were will be quoted as a correct statement of the not intended by the employer to apply to its situation and of the legal rule that was ap- contract of hiring with him, and the boy gave his wages to his father in such envelope, who, the plied to it. He said: father, after receiving it, and, with such notice in his mind, permitted the boy to go to work afterward, the provision in the act as to notice that it was not intended to apply was satisfied. Troth V. Millville Bottle Works, 86 N. J. Law, 558, 91 Atl. 1031; Id., 98 Atl. 435, distinguished. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 358.] "The prosecutor called Mae Gilling, and she testified that she did not observe defendant in the dance hall at the moment of the shooting. She made an oral statement under oath before the grand jury and a written statement that she saw the defendant at that time in the dance hall. The jury in this class of statements is permitted to consider as evidence only the testimony given here before it under oath. The statement elsewhere was not subject to crossexamination and the state cannot impeach its own witness. The statements made elsewhere were permitted to go in evidence merely for th purpose of tending to efface and neutralize the effect of the failure to testify of the witness under oath here that defendant was present at the shooting. The statement of the witness made elsewhere should be entirely disregarded as in any way tending to prove the truth of the fact which it asserts, which in this instance is that the defendant was present at the shooting. The jury may, however, if it believes the statements made elsewhere are worthy of that effect, conclude that they withdraw from the case the evidence of that witness which it tends to discredit just the same as if that evidence had never been introduced, but beyond this the jury cannot give it any effect whatsoever. In other words, the jury may permit it to wipe the slate clean so that there is no evidence of that witness upon that subject before the jury." The action of the trial court was therefore within the principle, although not within the precise facts of State v. D'Adame, 84 N. J. Law, 386, 86 Atl. 414, Ann. Cas. 1914B, 1109. There was no error in the rulings as to this witness. The same is true as to the witnesses Susan Brown Clark, Mary Weber, Anna Gurlter, and Dr. Edward Staehlin. We have examined the other assignments and specifications without finding any error or any matter justifying special mention. Finding no trial error in the record before us, the judgment of the Essex oyer is af 1. MASTER AND SERVANT 358-INJURIES TO SERVANT-WORKMEN'S COMPENSATION ACT. Compensation for injuries to an employé is recoverable under the provisions of the Workmen's Compensation Act (Act April 4, 1911 [P. L. p. 134]), if the contract of hiring be made after that act went into effect, unless there was, as a part of the contract, an express statement in writing prior to the accident, either in the contract itself or by written notice from either party to the other, that the provisions of section 2 of the act were not intended to apply; which notice, in case of a minor, is required to be given by or to his parent or guardian. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 358.] 3. NOTICE 9-SERVICE-MODE. Where a statute provides for the giving of a notice, but does not prescribe the manner of its service, it is sufficient if actual notice to the person to be affected is conveyed to him. [Ed. Note. For other cases, see Notice, Cent. Dig. §§ 16-21; Dec. Dig. 9.] 4. MASTER and Servant 347-INJURIES TO SERVANT-ASSUMPTION OF RISK. The provision in section 1 of the Workmen's Compensation Act (Act April 4, 1911 [P. L. p. 134]), that an injured employé's right to compensation shall not be defeated upon the ground that he assumed the risks inherent in, or incidental to, or arising out of, his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances (which ground of defense is, by the act, abolished), is constitutional. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 347.] Appeal from Supreme Court. Action by Daniel C. H. Brost, by his next friend, Charles Brost, against the Whitall Tatum Company. A judgment of nonsuit was affirmed by the Supreme Court, and plaintiff appeals. Reversed, and new trial awarded. Wescott & Weaver, of Camden, for appelWalter H. Bacon, of Bridgeton, for lant. appellee. WALKER, Ch. [1-3] The plaintiff, a minor aged 19 years, brought suit by his next friend, who is his father, against the de fendant corporation for physical injuries resulting to him while working as an assistant to glass blowers in the defendant's factory. defendant at its factory maintained a mold The gravamen of the action was that the hole over which boards were placed, and that in carrying materials from one part of the plant to another, it was necessary for the plaintiff to cross over it; that the defendIant failed to keep the boards over the mold hole in a reasonably safe condition, and that as plaintiff was in the act of walking over the boards, without fault on his part, he slipped and fell into the mold hole because the boards were inadequate, unsafe, and unguarded, and sustained injury. The suit was not one under the Workmen's Compensation Act, but one at common law. When the plaintiff rested, counsel for the defendant moved to nonsuit (1) because plaintiff's claim to compensation was gov erned by the Workmen's Compensation Act | men's Compensation Act; but it was not under which he did not sue, and, if denied proved that the notice, posted in the works on that ground, then (2) because no negli- and given to the minor through the medium gence on the part of the defendant had been of the pay envelope, had come to the knowlshown, and (3) because the risk was an edge of the boy's father, and the Supreme obvious one and was assumed by the plaintiff. | Court sustained the order for compensation The trial judge sustained the motion on the first ground, and, consequently, he did not consider or decide the other grounds. We think he erred. The contract of hiring was made after the Workmen's Compensation Act (P. L. 1911, p. 134) went into effect, and therefore compensation would be recoverable under it, unless there was, as part of the contract, an express statement in writing prior to the accident, either in the contract itself or by written notice from either party to the other that the provisions of section 2 of the act were not intended to apply. The plaintiff being a minor, the notice would have to be given by or to his parent or guardian, father in this case (P. L. 1911, pp. 136, 137); and the case on this phase turns upon the question of notice. On the pay envelope delivered by the defendant to the plaintiff, there was printed these words: "Employés take notice that provisions of section two of the Employers' Liability Act approved April fourth, 1911, chapter 95 of the Law of 1911, are not intended by this corporation to apply to its contract of hiring with you." The boy gave his wages to his father when he was home, and when he was not, to his mother. His father testified that he received at least one of the pay envelopes with the printed notice on it, and with that notice in his mind, let the boy go to work afterward. Counsel for respondent argues that this case is within that of Troth v. Millville Bottle Works, 86 N. J. Law, 558, 91 Atl. 1031, affirmed 98 Atl. 435. In that case a notice precisely the same in effect, and almost identical in language, was posted in the defendant's works and also given to its employés through the medium of a pay envelope, and it was held in the Supreme Court that when section 2 of the act is not intended to apply to the employment of minors, a notice must be given by or to the parent or guardian of the minor, and that notice posted in the works and given by means of a pay envelope does not suffice. There was no holding to the effect that if the parent or guardian of the minor saw the posted notice or the notice on the pay envelope that it would not amount to legal notice-only that such notice was not in and of itself sufficient. under the act. In the affirming opinion in the Troth Case in this court, the question of notice was upheld on the reasoning upon which the Supreme Court based its conclusion. Now a marked difference between the want of notice in the Troth Case and the fact of notice in the case at bar is apparent. In the Troth Case, although notice was posted and also printed on the pay envelope, it never reached the parent of the minor; in the case at bar the notice printed on the pay envelope reached the father of the minor, and he permitted his son to continue at work after the actual receipt of the notice, and with that very notice in his mind. The two cases are clearly distinguishable. It is to be observed that the Workmen's Compensation Act does not prescribe the form of notice to be given by or to the parent or guardian of a minor employé, to prevent the operation of the act upon the contract of hiring, nor of the manner of service of such notice. It appears, therefore, that actual notice is all that is necesary to bring the given contract within the purview of the statute. In Wilson v. Trenton, 53 N. J. Law, 645, 23 Atl. 278, 16 L. R. A. 200, this court had before it the question of service of a notice of an assessment for the laying out and opening of a street in Trenton, the charter of which city requires that notice be served upon residents. It is not perceived that a statute, requiring the giving of a notice of an assessment for the laying out and opening of a street, differs in regard to the manner of service from one requiring notice that the Workmen's Compensation Act is not to apply in a given case; the method of service not being provided for in either statute. In Wilson v. Trenton, Mr. Justice Magie (afterwards chancellor), speaking for this court, observed (53 N. J. Law, at page 648, 23 Atl. 279, 16 L. R. A. [N. S.] 200) that: "If the required notice is conveyed to the person to be affected thereby it is sufficient." In the case at bar, as already shown, the notice was actually conveyed to and received by the boy's father. We are of opinion that there was due service in this case of the notice that the Workmen's Compensation Act should not apply, In the Troth Case an order had been made and therefore the plaintiff's suit was propby the judge of the Cumberland pleas that erly brought at common law. This concluthe Millville Bottle Works pay Troth, a sion makes it necessary for us to consider minor, a certain amount as compensation for one of the other two reasons upon which injury received by him while at work for the the motion to nonsuit was rested, namely: company. In the Supreme Court it was con- (2) That no negligence on the part of the tended inter alia that the employer had given defendant was shown; and it would also notice to the employé of the fact that it make necessary consideration of the re risk was an obvious one and was assumed by the plaintiff, if it were not for the provision of section 1, paragraph 2, of the Workmen's Compensation Act, which abolishes the common-law defense of assumption of risk in this class of cases. P. L. 1911, p. 134. Although the nonsuit in this case was grounded upon only one of the three reasons urged, nevertheless, if one or both of the other two reasons, which the trial judge ignored, were valid, the judgment would have to be sustained. And this because a judgment upon nonsuit will be affirmed if correct on any legal ground, although the reason assigned by the trial court be erroneous. Gillespie v. W. J. Ferguson Co., 78 N. J. Law, 470, 74 Atl. 460. As to defendant's negligence: The plaintiff's suit is predicated upon the theory of defendant's negligence. Of course, if the defendant had not been in any wise negligent, the judgment of nonsuit would be right, although rested upon other grounds. The condition of the covering of the mold hole, namely, the loose board with a hole in it, which had existed for a long time, and which made possible such an accident as that which happened to the plaintiff in the course of his employment, made the question of defendant's negligence one for the jury. [4] As to assumption of risk: The provision in section 1 of the act on this score is that the right to compensation shall not be defeated upon the ground that the injured employé assumed the risks inherent in, and incidental to, or arising out of, his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances, which ground of defense is, by the act, abolished. This enactment is constitutional according to our decisions. Atl. 1070), but the question of the constitutionality of the abolition of the assumption of risks doctrine was not passed upon in the opinion. In Waibel v. West Jersey & S. S. Ry. Co., 87 N. J. Law, 573, 94 Atl. 951, this court had before it the question whether chapter 278, P. L. 1910, p. 490, modifying the defense of contributory negligence in actions to recover damages for injuries or death occurring at railroad crossings, in certain circumstances, was valid. The constitutional objection urged was that the statute violates the provision guaranteeing the right of trial by jury, and, while Mr. Justice Trenchard, who wrote the opinion, observed (87 N. J. Law, at page 576, 94 Atl. 951) that it was not perceived how or in what manner the act violated that provision, he went on to say (87 N. J. Law, at page 577, 94 Atl. 951) that what the act did was to require the trial judge to submit the question of contributory negligence to the jury; that it was true that theretofore in that class of cases, whenever the proof clearly showed contributory negligence, the trial judge was required to nonsuit the plaintiff, but that even regarding it as a rule of the common law, the right to a nonsuit, upon the ground of contributory negligence, was not entrenched behind any constitutional provision and was not originally created by legislative action; that it was a rule established by the courts; and that we have held, in effect, that common-law defenses may be modified or even abolished by the legislative power, where the cause of action arose after the legislative provision. became effective citing Sexton v. Newark Dist. Telegraph Co. 84 N. J. Law, 85, 86 Atl. 451, supra, and Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, wherein the Supreme Court of In Sexton v. Newark Dist. Telegraph Co., the United States held that a person has no 84 N. J. Law, 85, 86 Atl. 451, there was re- property or vested interest in any rule of viewed on certiorari in the Supreme Court a common law, and that while rights of properjudgment of the Essex pleas in an action un- ty which have been created by the common der the Workmen's Compensation Act, called law cannot be taken away without due proin that case "the Employers' Liability Act," cess, yet the law itself as a rule of conduct and one of the questions was as to whether may be changed at the will of the Legislasection 2, prescribing compensation for in- ture, unless prevented by constitutional limijuries, applied. It was held that it did, and tations. It was also observed in the opinion the judgment was affirmed. Mr. Justice in the Waibel Case, at page 577 of 87 N. J. Trenchard, speaking for the Supreme Court, Law (94 Atl. 951), that our Supreme Court observed (84 N. J. Law, at page 92, 86 Atl. in Quigley v. Lehigh Valley Ry. Co., 80 N. J. 454) that it was necessary to consider the Law, 486, 79 Atl. 458, had sustained the conobjections raised as they might be applicable stitutionality of the Employers' Liability Act to either section (1 or 2) of the act. Among of 1909 (P. L. p. 114), which regulated the the objections and reasons for reversal were common-law defense of employers, and that that the act violated the "due process of law" this court in Brown v. Erie Ry. Co., 87 N. J. and "equal protection of the laws" provisions Law, page 487, 91 Atl. 1023, sustained and of the federal Constitution, and that it im- applied chapter 35, P. L. 1909, p. 54, and paired the obligation of contracts in violation chapter 96, P. L. 1909, p. 137, both somewhat of the state and federal Constitutions; and similar in purpose and effect to the statute it was held (84 N. J. Law, at page 94, 86 Atl. then under consideration in the Waibel Case, 454) that as against the objections raised, although no suggestion was made in the section 1 of the act was clearly a valid and Brown Case that these enactments were beconstitutional enactment. This case was af-yond the power of the Legislature. |