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89 N. J. L.

Troth v. Millville Bottle Works.

given contract have been so changed, has the legislature impaired in any degree the obligations either of the master or the servant arising out of the original contract of hiring.

Lastly, it is contended that by force of the fifteenth paragraph of section 2 of the original act an employe is not entitled to compensation unless the employer shall have actual knowledge of the occurrence of the injury, or shall obtain such knowledge within ninety days thereafter, except upon proof of written notice given to the employer by the employe within the ninety day period. The argument is that where the employer is a corporation it is impossible that it shall have actual knowledge of the occurrence of an injury to one of its employes, and that, therefore, in the case of a corporate employer, it is under no obligation to make compensation unless it receives the statutory notice.

It is conceded that no notice in writing was given in the present case.

The question raised by this contention has already received consideration at our hands in the case of Allen v. Millville, 88 N. J. L. 693, and was resolved adversely to the appellant's contention. We see no reason to change the view expressed by us in the opinion delivered in the cited case.

The judgment under review will be affirmed.

For affirmance-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, PARKER, MINTURN, KALISCH, WHITE, TERHUNE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, JJ. 13.

For reversal-None.

Gore v. D., L. & W. R. R. Co.

89 N. J. L.

EMMA E. M. GORE ET UX., APPELLANTS, v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, RESPONDENT.

Submitted April 5, 1916–Decided June 19, 1916.

Where the evidence showed that the plaintiff suffered injury by reason of a combination of elements creating a situation calling for the exercise of some care on the part of a carrier for the safe exit of the plaintiff from its train, and that the defendant exercised no degree of care, a nonsuit was error. &

On appeal from the Supreme Court.

For the appellants, Lum, Tamblyn & Colyer and Elmer King.

For the respondent, Frederic B. Scott.

The opinion of the court was delivered by

GARRISON, J. The plaintiff having been nonsuited the state of the case upon appeal comprises all of the facts in evidence that make for the plaintiffs' right to recover.

The facts therefore with which we have to deal are that on February 3d, 1914, at a little after five o'clock P. M., Mrs. Gore, aged sixty-four, took the defendant's train at Morristown for Orange; that upon previous occasions when she had made the same trip she had alighted from the train at Orange on the station platform at about the centre of its length; that on the occasion in question when the train made the stop for the Orange station she stepped out of the car in which she had been riding on to the car platform and down the steps until she stood on the bottom step; that she then took hold of the rail with her right hand and reached down from the step with her left foot as far as she could and then letting go with her hand her foot descended a long distance before striking the rough surface of a Belgian block pavement, whereupon she lost her balance, pitched, tried to gain her

89 N. J. L.

Gore v. D., L. & W. R. R. Co.

equilibrium, but failed and fell. This is the plaintiff's account of her accident substantially in her own words.

Additional facts are that the train stopped at a point where the plaintiff in leaving the car in which she rode alighted not on the station platform, but on a roadway paved with rough Belgian blocks; that the light was so dim that she could not see the surface of the road; that there was no brakeman to show a light or to assist her in getting off; that she looked for one and waited a few seconds and then let herself down, as the train did not stop long at the station.

The discussion whether this accident was due to faulty construction or to negligence in operation and whether the care owed by the defendant was of a high degree or only such as was reasonable, seems to be entirely academic, in view of the fact that no degree of care was exhibited and that the accident was at least in part attributable to matters of train operation. The arrangement and extent of the station platform, and the height of the car steps from the ground, may be matters of construction; but the stopping of the train at one place rather than at another, the providing of proper light, the presence of trainmen to assist passengers in alighting under certain circumstances or to warn them of certain conditions are pure matters of operation. It may well be that no one of the elements that contributed to cause the plaintiff's accident did the defendant violate any direct duty owing to her, and yet it may also be true that the combination of all of these elements created a situation that called for the exercise of some care by the carrier for the safe exit of the plaintiff from its train.

as to

Such duties by a carrier are often in the alternative, so that while no one duty is specific, it does not follow that they may all be neglected with impunity. Thus, under ordinary conditions, there is no direct duty to assist passengers to

alight,

or to warn or instruct them, or to furnish additional

light, so, also, there may be no direct duty to stop the train opposite the station platform or to avoid disembarking passengers on a paved roadway, but, notwithstanding the absence of direct duty as to each of these isolated elements, an

VOL. LXXXIX.

15

Mingoes v. Central R. R. Co.

89 N. J. L.

alternate or conditional duty may arise from their fortuitous combination. Thus the duty to warn or assist, not in itself a direct duty, may arise from the unusual conditions created by the place of stoppage, not in itself the violation of a direct duty.

This, it seems to us, is the situation presented by the plaintiff's testimony from which a jury might infer an invitation to leave the train under conditions that placed upon the defendant the duty of using such care as arose out of such conditions and was commensurate with the danger to be reasonably apprehended therefrom.

It was error therefore to nonsuit the plaintiff.

The judgment of nonsuit is reversed and a venire de novo awarded.

For affirmance-None.

For reversal-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, TERHUNE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, JJ. 15.

HELEN MINGOES,

ADMINISTRATRIX, APPELLANT, V.

CENTRAL RAILROAD COMPANY OF NEW JERSEY,
RESPONDENT.

Argued March 13, 1916-Decided June 19, 1916.

1. The submission of testimony on rebuttal of evidence which related to plaintiff's main case is a matter for the discretion of the trial court.

2. Where no objection is made to a question asked a witness, and the answer is responsive, the motion to strike out part of the answer was properly denied.

On appeal from the Hudson Circuit Court.

89 N. J. L.

Mingoes v. Central R. R. Co.

For the appellant, Alexander Simpson.

For the respondent, Charles E. Miller (George Holmes on the brief).

The opinion of the court was delivered by

GARRISON, J. This action was instituted in the Circuit Court to recover damages under the Death act. The negligence charged in the complaint was in the blowing of a locomotive whistle in an unreasonable way. There was a verdict in favor of the defendant and from the judgment entered thereon this appeal was taken by the plaintiff.

The grounds for reversal argued by appellant's counsel are, first, that it was error to overrule a hypothetical question. put by plaintiff below to a medical witness concerning the mental condition of the defendant's locomotive engineer on November 2d, 1914, the day of the accident. This testimony was offered upon rebuttal; it had reference to the accident set forth in the complaint and it was therefore the duty of plaintiff to offer it on his main case. The overruling of such testimony is a matter of discretion. Moreover the complaint does not allege that the engineer was an unfit person to be employed by the defendant or charge any negligence in that respect. The fact that the question tended to contradict defendant's witnesses upon immaterial points did not remove it from the class of discretionary rulings.

There was no error in the ruling. The second ground is that the court ruled that a certain question was not objectionable as leading. This also was a discretionary matter.

The third ground is that the court refused to strike out a part of an answer given by a witness. The question put to the witness by defendant's counsel was, "While you were with him (the engineer), did he appear to you to be a bright or a dull man?" This was not objected to. The answer of the witness was, "Well, of course, everybody has their opinion. He seemed to me to be a very sure man in my eyes. I took

him

for a model.” It is this last sentence that counsel for

the plaintiff moved to have struck out. Taken in connection

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