79 N.J.L. 134 | N.J. | 1909
The opinion of the court was delivered by
The declaration alleges that defendant owned and operated a street railway line in ETewark, and that plaintiff became a passenger on one of defendant’s cars, a southbound Mount Prospect avenue car, at Broad and Greene streets; "that said car was a pay-as-you-enter’ car, having
The plaintiff, as will be observed, lays considerable stress on the failure of defendant’s agents to use a bar with which the ear was equipped, to prevent the overcrowding of the car; but this in effect is no more than saying that defendant permitted the car to become overcrowded; and in fact, the pleader comes to rest on the proposition that the accident was due to defendant’s “overcrowding its car to such an extent that the ordinary result therefrom was the injury of one or more of its passengers.” The language of the declaration
The ease of Hansen v. North Jersey Street Railway Co., 35 Vroom 686, does not help the plaintiff in the case at bar. While no -opinion was expressed as to the duly, if any, of the ■ carrier to limit the number of passengers on its cars, it is plainly intimated that the practice is so common and so acquiesced in by the public, as to require passengers to take notice of it, and that the duty of the carrier was “to use a high degree of care to protect the plaintiff, not indeed from crowd'ing per but from danger likely to arise from crowding;” and the ruling that a case for the jury was presented was put upon the ground that the motorman, who opened the door and gate to let passengers out, took no measures for their safety, and might legitimately be considered by a jury to have failed in the duty of extra care arising out of the crowded condition. But the present declaration makes no charge of negligence on this theory. As we have already seen, negligence is predicated, not on any failure to protect an alighting passenger from clangers of the crowd, as in the Hansen case, but on the failure to prevent overcrowding; a condition so common as to be familiar to every user of street cars in large cities and accepted by the public. The Court- of Errors and Appeals said in the Hansen case, in substance, that under such circumstances overcrowding is not per se negligence. So far as ap
Let there be judgment for the defendant on the demurrer.