96 N.J.L. 228 | N.J. | 1921
The opinion of the court was delivered by
This was an accident case. The trial resulted in a verdict for the plaintiff. The only error assigned, as a ground of appeal, is that the trial court refused toi direct a verdict in favor of the defendant. The allegations are, there was no evidence of any negligence shown on the part of the defendant and the plaintiff was guilty of contributory negligence. The latter was abandoned, in the brief, on the argument. The essential facts are; The plaintiff, on the even
The trial court applied and followed tlie principle laid down in the cases of Sonn v. Erie Railroad Co., 66 N. J. L. 428; affirmed, 67 Id. 350; Samkiwicz v. Atlantic City Railroad Co., 82 Id. 478; Weller v. Lehigh, &c., Railway Co., 81 Id. 95; (Poster Dairy Farms v. New York Central and Hudson River Railroad Co., 88 Id. 559. It is elementary, public statutes need not be pleaded.
The record! shows the director-general of railroads, on January 2d, 1918, was operating the Erie Railroad Company, that such company was organized under the laws of the State of New York with authority to do business in Xew Jersey, the crossing at Aycrigg avenue in. the city of Passaic, where the accident occurred, was a part of that railroad system. The statute, by its terms, applies to “every railroad company owning, leasing or controlling any right'of way within, this state.” If the exceptions in the proviso of the statute create any different rule of liability, the burden of pleading the proviso in the statute and showing- the facts in avoidance was on] the defendant. The rule succinctly stated is, when the enacting clause of a statute mjakes an exception to the general provisions of the act, a party pleading' the provisions of the statute must negative the. exception. But when the exception is contained in a proviso, and not in the enacting-clause, tlie party pleading the statute need not negative the exception. It is for the other party to set it up- in avoidance of the general provisions of the statute. Chit. Plead. *229;
This rule has been applied by our courts to the drafting of indictments .for statutory offences. Mayer v. State, 61 N. J. L. 323, 326; State v. Marks, 65 Id. 84; Vandegrift v. Meihle, 66 Id. 92.
The defendant did not set up this proviso of the statute or attempt to prove the-facts, if any, which would avoid the general provisions of tire statute, hence the trial court was not in. eran* in submitting to the jury the rule of liability declared by the general provision of the statute, as defined and applied by this court.
Finding no error in the record, the 'judgment of the Supreme Court is affirmed, with costs.
For affirmance — The Chancellor, Chief JusmcE, SwAYZE, TRENOHAinr, P VRTvER, BbEGEN, MrNTUBN, KaLLSCII, Black, Katzenbacii, White, Heppenuelmee, Williams, Gakdneb, JJ. 14.
For reversal—None.