Mason v. Erie Railroad

The opinion of the court was delivered by Garrison, J.

The instruction exhibited by the first of the • foregoing exceptions was erroneous in that it incorrectly stated that the duty of the plaintiff in error was to provide a reasonably safe place for its passengers to alight from its trains, whereby the jury was permitted to determine whether reasonable care had been exercised by the plaintiff in error not from the qualities of its conduct in that respect, but solely by the jury’s opinion as to the results of that conduct. The duty of the railroad company was, it is perhaps needless to say, merely to exercise reasonable care to provide a safe place for its passengers to alight. Dotson v. Erie Railroad Co., 39 Vroom 679 .

“This distinction is fundamental,” as was said in the opinion of this court in Foley v. Brunswick Traction Co., 37 Vroom 637 , “since it marks the difference between a carrier’s liability for negligence and its guaranty of safe carriage. The former inheres in the implied duty owed by the defendant to the plaintiff. The latter does not so arise, and was not within the undertaking of the defendant.” In the same opinion this further language is used touching an instruction that is not distinguishable in principle from the' one now before us: “This instruction was, we think, erroneous. Its *524 error lay in this, viz., that it gauged the liability of the defendant not by the quality of its conduct, but by the results of that conduct, thereby covering indiscriminately injuries resulting to the plaintiff from causes preventable by the exercise of due care on the part of the defendant, and injuries that might have happened notwithstanding the exercise by the defendant of the degree of care legally imposed upon it as a carrier of passengers. * * * The gravamen of the plaintiff’s action was the failure of defendant to use reasonable care for her safety as a passenger, hence the correct instruction would have been that the defendant was liable for the plaintiff’s injuries if it failed to taire reasonable precautions to see that the place provided by it for her discharge was a safe one for that purpose. * * * It was the defendant’s right to have that question submitted to the jury. The question that was submitted to the jury did not give the defendant its right in this respect, for while the occurrence of the accident demonstrated the unsafe character of the place at which the plaintiff was invited to alight, it could not lawfully be permitted to establish also the negligence of the defendant, which upon this writ of error was the effect given to it by the verdict.” Upon the authority, therefore, of the case cited, and of the reasoning on which it rests, the charge in the respect indicated was reversible error.

The other exception also exhibited legal error in the charge. Upon the court’s own summary of the state of the testimony as to the plaintiff’s business before and after his accident, namely, that it failed to show that at either period the business had been conducted at a profit, the jury should have been instructed to allow the plaintiff no damages by way of the profits of such business. That “profits, to be included in the plaintiff’s measure of damages, must be proved, and cannot be estimated by the jury without data to justify their finding,” was recently held in the Supreme Court, in Bartow v. Erie Railroad Co., 44 Vroom 12 , citing East Jersey Water Co. v. Bigelow, 31 Id. 201, decided in this court. The authorities cited in the last-mentioned case fully sustain the position that damages that do not rest upon proof cannot be awarded by a *525 jury, if any authority for so self-evident a proposition be needed.

The attention of the trial court at the close of the charge was specifically called to the precise point of the exception that was then prayed to this feature of the charge, but aside from this, the charge itself, being erroneous, was the proper subject of a direct exception upon which error could be assigned.

The judgment of the Circuit Court is reversed.

For affirmance — None.

For reversal — Magib, Chancellor, The Ci-iiee Justice, Garrison, Hendrickson, Pitney, Swayze, Reed, Trenohard, Bogert, Vroom, Green, Gray, Dill, J.J. 13.