98 N.J.L. 143 | N.J. | 1922
The opinion of the court was delivered by
This was an action brought by the plaintiff, under the federal liability statute, to recover compensation for injuries received by him while engaged in the service of the defendant company as a watchman in the latter’s yard in Jersey City. The relationship of the parties was admitted. The proofs showed that the plaintiff, while engaged in the performance of his duties, and some time in the small hours of the morning of November 3d,
At the close of the case there was a motion to direct a verdict submitted by the defendant upon three grounds— first, that the evidence submitted failed to show that at the time of the accident the plaintiff was employed and the defendant was engaged in interstate commerce; second, that the proofs failed to disclose negligence on the part of the defendant, and third, that the plaintiff assumed the risk of his injury. The trial judge considered that the questions of negligence on the part of the defendant and assumption of risk by the plaintiff were matters to be determined by the jury, and not by the court, and refused to direct a verdict
The theory upon which the trial judge directed the verdict was that the interstate movement of the car had been terminated when it reached Jersey City, had been placed upon the side track in the defendant’s yard, and notice of its arrival had been mailed to the consignees; considering that after the mailing of the notice the relationship of the defendant company to the consignees ceased to be that of a carrier of goods and was transformed into that of a warehouseman. We cannot concur in this view. In the case of Burr v. Adams Express Co., 71 N. J. L. 263, 268, 269, we held that where the contract of carriage contemplates delivery upon the carrier’s premises at the terminus of the route, and no time for the arrival of the goods or for their delivery is stipulated for, the duty of the carrier in making delivery necessarily involves either the allowance to the consignee of a reasonable time within which to make inquiries respecting their arrival, or, in the absence of such stipulation, the duty on the part of the carrier to give notice of arrival to the consignee, and that this duty involves, in either case, the allowance to the consignee of a reasonable time and opportunity after notice of the arrival of the goods within which to take them away. This is the common law rule with relation to the obligation of the carrier as such, and the federal statute, as we read it, makes no change in that rule. Section 8563, subdivision 2 (8 U. S. Comp. Stat. 1916), declares that “the term ‘transportation’ shall include * * * all services in connection with the receipt, delivery, &c., of property transported.” And it is plain, we think, that under this statutory provision, the word “delivery” connotes either tender to the consignee or a reasonable opportunity afforded him for the removal of the property transported. Consequently, a railroad company transporting goods from one state to another is engaged in interstate commerce until delivery is made, or at least until an opportunity is afforded
We conclude, therefore, that the ground upon which the direction of the verdict was rested by the trial court is unsound.
But it is contended by counsel for the respondent that the fact that the determination of the trial judge was rested upon a reason that is fallacious is no ground for a reversal of his action if that action was justified upon any other ground upon which the application was based. The rule is entirely settled in favor of the contention. Sadler v. Young, 78 N. J. L. 594; Beach v. Palisade Realty Co., 86 Id. 238. We are therefore required to consider the question of the soundness of the other two grounds upon which the motion was rested, namely, that the evidence submitted failed to disclose negligence on the part of the defendant, and that the plaintiff assumed the risk of his injury.
We think the question of the existence of negligence vel non was a question to be determined not by the court-but by the jury. A railroad company is under a legal obligation to its employes to make a reasonable inspection of cars hauled over its road at convenient places during their journey for the purpose of discovering defects likely to occur in the course of transportation. Anderson v. Erie Railroad Co., 68 N. J. L. 647, 649; Griffin v. Director General, 95 Id. 490. The fact that the ear door when the plaintiff attempted to open it was so out of repair that it fell from its fastenings was some proof that there had been failure on the part of the defendant company, or its agents charged with that duty, to make proper inspection of the condition of the door, and this is especially true in view of the fact that no evidence whatever was offered by the defendant company to show the performance of that duty.
For the reasons Which we have indicated, the direction of a verdict in favor of the defendant was improper, and the judgment brought up by the appeal must be reversed.
For affirmance — None.
For reversal — The Chancellor, Chief Justice, Trenchaed, Parker, Bergen, Minturn, Kalis ch, Black, Katzenbach, White, Williams, Gardner, Ackerson, Van Buskiek, JJ. 14.