Barlow v. Jersey City, Hoboken & Paterson Railway

[366] The opinion oi the court was delivered by Collins, J. The nonsuit was right. The plaintiff was in no' sense a passenger. He got upon the step of the car at a place where he must have seen, if he had looked, that ingress was barred. That sometimes in defendant’s cars the door at that place was left open, and that passengers were allowed to enter there before the car started, did not excuse him from looking to see if an invitation, by an open door, was then extended to him to enter there. He knew that'the rear platform was the proper place to enter a car, and his excuse that the platform he tried to get upon would eventually be the rear one only emphasizes that knowledge. It should be noticed, too, that when the car would be turned so as to make it the rear platform, the proper place of ingress would have been on the opposite side of the car from that on which the plaintiff attempted to enter it. If the motorman saw the plaintiff on the step, he owed him no duty but to abstain from willful injury. He was not legally called on to open the door. His attention might be needed in the operation of the controller and brake and in keeping a lookout, especially as he was running without headlight or fender. If it be urged that he was negligent in running his car without those protections, or in not observing that the wagon with which he collided projected over the path of the car, it is sufficient answer to say that only passengers properly in or upon the car or persons lawfully using the highway could have had legal cause to complain of such negligence. The plaintiff relies on the case of Kelly v. Consolidated Traction Co., 33 Vroom 514, but the circumstances of that case were very different from those now involved. There a conductor started a car when he saw a passenger in the act of getting upon it with precarious footing. We held that, although the attempted entrance was at a place where it need not have been looked for, yet, if it was seen, the conductor ought not to have started the car. We have never held that to one who jumps on a moving car at a place where he has no right to expect ingress to be afforded, either conductor or motorman owes a duty to stop the car or to lessen its speed. [367] In the ease in hand, if the motorman in fact saw the lad, common humanity should have prompted him to do one of these things in order that the danger of the situation might be averted; but legal duty chargeable to the master is a very different matter. The youth of the plaintiff gave him no extraordinary right of protection. It has, indeed, been held that care may be due to children getting on street cars that is not due to persons sui juris. Danbeck v. New Jersey Traction Co., 28 Vroom 463. But the plaintiff in this case was of sufficient age and intelligence to be held to the general rules applicable to adults. Sheets v. Connolly Railway Co., 25 Id. 518; North Hudson County Railway Co. v. Flanagan, 28 Id. 696; Brady v. Consolidated Traction Co., 34 Id. 25; S. C., 35 Id. 373; Vorrath v. Burke, 34 Id. 188. The rule to show cause must be discharged.