Miller v. Public Service Coordinated Transport

Proctor, J. A. D.

(dissenting). My view of the record compels me to dissent from the majority opinion.

The evidence shows that Mrs. Miller, together with her daughter and 2%-year-old grandson, entered the bus and obtained seats. When the bus reached their destination all *431of the seats were occupied and the aisle was filled. Mrs. Miller, followed by her daughter and grandson, proceeded to the exit door at the front of the bus. It does not appear that any other passengers were leaving the bus at that time. Mrs. Miller’s explanation of the occurrence follows:

“Q. What happened as you were proceeding there? A. Well, I tried my best to get through, and while I was trying to get myself through everybody was shoving to try to make room for me because there was no room, and as 1 got to the step they just pushed me and I fell into the street.”

Plaintiff also testified she asked the passengers to stop pushing, but there is no evidence the operator heard or could have heard her. Moreover, there is no evidence that any one pushed her prior to her mishap. The only other witness called by the plaintiff's was their daughter. She testified the bus became crowded en route; that Mrs. Miller started from her seat to leave the bus about one block before their destination; that the passengers were trying to be helpful by making room for them to get through the aisle; that “They (passengers) were cooperative. There was no room and they squeezed and pushed to make room for us.” The daughter held the grandson by the hand and he was at her side as they got off the bus directly after Mrs. Miller.

While defendant, as a common carrier, is under a duty to exercise a high degree of care to protect its passengers from the acts of fellow passengers which might be reasonably foreseen, Hansen v. North Jersey St. Ry. Co., 64 N. J. L. 686 (E. & A. 1900), and the crowding of passengers in a bus calls upon the common carrier to use a degree of care commensurate with the risk of danger, Nazarro v. Hudson & Manhattan R. R. Co., 125 N. J. L. 108 (Sup. Ct. 1940); affirmed, 125 N. J. L. 509 (E. & A. 1941), overcrowding of a bus is not in itself negligence. Lehberger v. Public Service Ry. Co., 79 N. J. L. 134 (Sup. Ct. 1909).

In the present case there was nothing discernible in the movement or conduct of the passengers from which the operator of the bus could have foreseen any danger to Mrs. Miller. *432The passengers were orderly and “cooperative.” The proofs, taken in their most favorable light for the plaintiffs, show nothing more than a crowded bus whose passengers were endeavoring to assist Mrs. Miller in removing herself from the bus. Crowding per se does not impose liability. See Hansen v. North Jersey St. Ry. Co., supra; Nazarro v. Hudson & Manhattan R. R. Co., supra. Defendant is not an insurer of the passenger’s safety and, in the absence of negligence, is not answerable.

In the cases cited in the majority opinion, there were circumstances, in addition to the crowding, from which the carrier should have anticipated danger to its passengers. In Hansen v. North Jersey St. Ry. Co., supra, there was evidence that the motorman of the carrier observed “that the outgoing persons were pressing forward so as to exert considerable force” and that “acts of violent rudeness were committed-towards the plaintiff” in the immediate presence of the motorman. In Dunham v. Public Service Corporation, 76 N. J. L. 452 (Sup. Ct. 1908), the case, on demurrer to the declaration, turned on the question of plaintiff’s contributory negligence. In Barney v. Hudson & Manhattan R. R. Co., 105 N. J. L. 274 (Sup. Ct. 1929), the conductor “slammed” the door of the car on plaintiff’s fingers. In Nazarro v. Hudson & Manhattan R. R. Co., supra, the station platform became extremely overcrowded due to a delay in the train schedule during the rush hour, and defendant’s guards failed to control the rush' of passengers to board the train. Compare Lehberger v. Public Service Ry. Co., supra. The question of crowding is not involved in the other cases cited. In Rivers v. Pennsylvania R. R. Co., 83 N. J. L. 513 (E. & A. 1912), the negligence of the defendant carrier consisted of a sudden “jerk,” causing the plaintiff passenger to be thrown off the train. In Davis v. Public Service Coordinated Transport, 113 N. J. L. 427 (E. & A. 1934), the plaintiff passenger was injured when the bus collided with a pole.

. I think'the action of the trial court in dismissing plaintiffs’ case was proper.