Page images

were, at the time of the negotiation, ent, is discussed in the annotation in attached to a copy of the lease, makes

3 A.L.R. 987. them subject to the terms and condi

Memoranda or notations on paper tions of the lease-a question that is

as affecting one's character as a holdanswered in the negative. No other

er in due course are discussed in 34

A.L.R. 1377. case having similar facts has been

Reference to extrinsic agreement as found.

affecting negotiability of bill or note Bona fides of purchaser of notes on

is discussed in the annotation in 14 an executory consideration, perform- A.L.R. 1126, supplemented in 33 A.L.R. ance of which is a condition preced- 1173.

W. A. E.

BARBARA S. DEMAREST et al., Appts.,


New Jersey Court of Errors and Appeals January 30, 1925,

(- N. J. 127 Atl. 536.) Amusements, $ 6 – injury to one using pass — liability.

Plaintiffs, intending a visit to defendant company's amusement park, procured a free pass thereto through the intercession of a friend, which pass read: “Complimentary. Pass four (4) to grounds and following attractions," including "sleigh ride," an amusement device, while riding on which plaintiff B. S. D. was injured through negligence of defendant's agent in charge, as the proof tended to show. Held, (1) that plaintiff, who paid an admission fee to the park (which appears to have been unnecessary in view of the pass), and who went upon the "sleigh ride” gratis, in virtue of the pass, was an invitee upon the premises and the ride; and (2) that the question of defendant's liability for her injury became a factual one for the jury to pass on, in the absence of a contract between the parties absolving defendant from liability for injury to the plaintiff while in the enjoyment of a privilege extended by the pass.

[See note on this question beginning on page 357.] Headnote by WALKER, Ch.

(Gummere, Ch. J., and Black, Katzenbach, and Clark, JJ., dissent.)

APPEAL by plaintiffs from a judgment of the Supreme Court granting nonsuit of an action brought to recover damages for personal injuries alleged to have been caused by the negligence of defendant's agents and servants. Reversed.

The facts are stated in the opinion of the court.

Messrs. Michael Dunn, Arthur C. 307, 27 Atl. 478; Furey v. New York Dunn, and Michael J. Murphy, for ap- C. & H. R. R. Co. 67 Ñ. J. L. 270, 51 pellants :

Atl. 505, 11 Am. Neg. Rep. 472. The court erred in granting the mo- The court erred in not permitting tion for the nonsuit in holding that the jury to pass on the question of plaintiffs were licensees as matter of whether or not plaintiffs were lilaw.

censees or invitees. Phillips v. Library Co. 55 N. J. L. 29 Cyc. 454; Phillips v. Library Co.

(-- N. J. -, 127 Atl. 536.) supra; Black v. Central R. Co. 85 N. J.

tion of two persons, who are seated L. 197, 51 L.R.A. (N.S.) 1215, 89 Atl. on the floor, one behind the other, 24.

the one in front being provided The fact that defendant's agents

with a leather belt strapped across accepted the pass when tendered by

in front of the rider's body to preplaintiff, and directed her to use the device upon which she was injured,

vent expulsion from the car or would lead a reasonable person to the

sleigh in case of a sudden stop. The natural conclusion that she was en

sides are raised sufficiently to pretitled to receive the same degree of vent the riders from falling off. carę as other patrons of that device. When two persons are thus seated

Ryckman v. Hamilton, G. & B. Elec- in the car or sleigh, it is propelled tric R. Co. 10 Ont. L. Rep. 419, 4 Ann. up to the top of the inclined plane, Cas. 1126–C. A.; Indianapolis Trac- and, after making a short turn, it tion & Terminal Co. v. Lawson, 5 descends with its occupants on the L.R.A.(N.S.) 721, 74 C. C. A. 630, 143 Fed. 834, 6 Ann. Cas. 666; Memphis

track provided for it on a long and Street R. Co. v. Caviness, 127 Tenn.

steep grade, at a rapidly accelerated 571, 46 L.R.A.(N.S.) 142, 157 S. W. 63,

speed toward the bottom, until it Ann. Cas. 1914B, 1208; Indianapolis reaches a certain place, where a Traction & Terminal Co. v. Klentschy, servant is stationed who has charge 167 Ind. 598, 79 N. E. 908, 10 Ann. Cas. of a contrivance in the nature of a 869; Harvey v. Deep River Logging brake, by which the speed of the Co. 49 Or. 583, 12 L.R.A.(N.S.) 131, car or sleigh can be gradually de90 Pac. 501; Albion Lumber Co. v. De creased until it is brought to a stop, Nobra, 19 C. C. A. 168, 44 U. S. App. so that the occupants can safely 347, 72 Fed. 739; San Jacinto & S. R.

alight from it. Co. v. McLin, 26 Tex. Civ. App. 423,

The plaintiff-appellant Frank B. 64 S. W. 314; Lygo v. Newbold, 23 L. J. Exch. N. S. 108; Owens v. Asso

Demarest went to the defendant's ciated Realties Corp. 81 N. J. L. 586,

amusement park with his wife and 80 Atl. 325.

children and several other people on Mr. Wayne Dumont for appellee.

July 20, 1922, his wife having

bought a ticket or tickets of admisWalker, Ch., delivered the opinion sion. Three or four days previous

, of the court:

ly thereto he received a free ticket Plaintiffs-appellants, husband and

or pass for four persons for the wife, brought this action against the gratuitous enjoyment of certain defendant for injuries caused to the

amusement features in the park wife, Barbara S. Demarest, by rea- (which included admission to the son of the alleged negligence of de- park). This he got from a man by fendant's agents and servants in the name of Quinn, who appears to operating an amusement device have frequently gotten passes for maintained by it in a park which it different people. Quinn was a owned and controlled, while she friend of his and of the amusement was using and enjoying the device; company. The pass was not issued and the husband's action was for to any particular person or persons, his outlay of money for the treat- but had the name “J. Quinn" writment of his wife for her injuries ten on the back of it, which, apparand for loss of her companionship ently, showed that it was issued for during disability.

or on account of Mr. Quinn; that he Among the devices in the park solicited it. On the face of it were was one known as a “sleigh ride,' the words, “Complimentary: Pass operated on an inclined plane, upon four (4) to grounds and following which is maintained a track over attractions," among others, “sleigh which cars known as sleighs are

ride." The defendant admits the run for the use of persons desiring possession of the pass by the lainto take a ride thereon. They are tiff-appellant Frank B. Demarest, shaped somewhat like a sleigh, and and its presentation to and accepteach is adapted for the accommoda- ance by its agents.

38 A.L.R.-23.

Mr. Demarest, with his wife and the entry upon or use of the prema woman in their party, went to the ises dangerous; that the gist of device called "sleigh ride," and an liability consists in the fact that the attendant put her on the floor of the person injured did not act merely car and her woman friend directly on motives of his own, to which no behind her. Mr. Demarest observed sign of the owner or occupier conthem on the ride, and as the sleigh tributed, but that he entered the in which they were, was coming premises because he was led by the down the incline at a very great acts or conduct of the owner or ocrate of speed, and when near the cupier to believe that the premises brake handles, noticed an attendant were intended to be used in the talking to a man who operated the manner in which he used them, and brake, who looked around, and, see- that such use was not only acquiing the car thus approaching, made esced in, but was in accordance with four or five jumps to the brake and the intention or design for which grabbed the handle, stopping the the way or place was adapted and car suddenly, and the two women prepared or allowed to be used. were, apparently by this action, Now, Mrs. Demarest was led to enthrown on their backs, rendering ter upon the “sleigh ride” by the Mrs. Demarest unconscious, break- "complimentary” pass and by the ing three ribs, and seriously injur- acts and conduct of the agent of the ing her.

owner or occupier (the defendant), At the trial of the case, after the and to believe that the “sleigh ride" presentation of plaintiffs-appellants' was intended to be used by her in evidence, defendant moved for a the nner in which it was used, nonsuit on the ground that the and that it was safe for her to use plaintiff-appellant Barbara S. Dem- it. Phillips v. Library Co. has been arest was a licensee on the prem- repeatedly followed and applied by ises of defendant, and not an in- the courts of this state, one of the vitee, and therefore the defendant latest cases being Gibeson v. Skidwas not liable to her for the negli- more, N. J. — 122 Atl. 747, 23 gence, if any, of its servants and N. C. C. A. 173, wherein we reiteragents; and this upon the theory ated the doctrine of that case. that she rode upon a free pass in- The situation of the injured stead of a paid ticket to the device. plaintiff is quite analogous to that The court, upon the defendant's of

person traveling upon a railmotion, granted the nonsuit against road train on a free pass, in which the plaintiffs, and from the judg- case it has been held in this state ment entered thereon they appeal that the defendant company may here.

exculpate itself from liability to a Under the doctrine enunciated passenger who receives knowingly for this court by Mr. Justice Depue, a free ticket, with an indorsement in Phillips v. Library Co. 55 N. J.

upon it of a contract that in conL. 307, 27 Atl. 478, we think the sideration of a free passage he will plaintiff Mrs. Demarest was not a assume the risk of injuries to his licensee, but an invitee, upon the person from the negligence of the

premises and the servants of the railroad company. Amusements

ride. It is there injury to one

In Kinney v. Central R. Co. 32 N. J. laid down that the L. 407, 90 Am. Dec. 675, Chief liability.

owner or occupier Justice Beasley, in the supreme of lands who by invitation, express court, said at page 412: “The or implied, induced persons to come transaction is virtually this, the upon the premises, is under the carrier says to the passenger, 'I duty to exercise ordinary care to have employed careful and skilful render the premises reasonably safe men to manage my locomotive and for such purpose, or at least to ab- cars, but they are human, and they stain from any act that will make may fail in their duty, to your dan

[ocr errors]
[ocr errors]

using pass

(- N. J. -, 127 Atl. 536.) ger.' The passenger says: 'In con- thereof is analogous to the relation sideration of a free passage, I will of bailor and bailee, the doctrine of run that risk.' The bargain is the Kinney Cases is particularly apstruck on these grounds, and I am plicable. clear that it would be a great re- In La Brasca v. Hinchman, 81 N. finement to impeach it as being J. L. 367, 79 Atl. 885, the supreme prejudicial to public interests." court, speaking by Mr. Justice

This case was affirmed in 34 N. J. Minturn, at page 369, observed : L. 513, 3 Am. Rep. 265, wherein Mr. "Chancellor Kent enunciated the Justice Van Syckel, writing the doctrine in Thorne v. Deas, 4 Johns. opinion, says at page 514, that 84, where he says: 'By the common

, "the single question to be deter- law a mandatory, or one who unmined is whether the express agree- dertakes to do an act for another ment exempts the company from without reward, is not answerable responsibility for the neglect of its for omitting to do the act, and is agents. The contract is clear in its only responsible when he attempts expression, made between compe- to do it, and does it amiss. In other tent parties, and unless it con- words, he is responsible for a mistravenes some settled rule of law, feasance, but not for a nonfeasance.' or is contrary to public policy, it Upon a like application of this prinfully dispenses the company from ciple, a carrier of passengers has liability.”

been held liable for a negligent inAnd at page 516: “Why should jury to a passenger, although the the passenger who solicits a free latter is being carried without compass be permitted to escape the pensation, except as we have held liability to loss which he voluntarily in this state where the contract of assumes in order to secure the ac- carriage exempts the carrier from commodation? It is certainly a such liability. Kinney v. Central R. breach of good faith in the passen- Co. 34 N. J. L. 513, 3 Am. Rep. 265; ger to attempt to fix the carrier The New World v. King, 16 How. with responsibility in such case. 469, 14 L. ed. 1019, 10 Am. Neg. Cas.

The supreme court in Trenton 614; Rose v. Des Moines Valley R. Pass. R. Co. v. Guarantors Liability Co. 39 Iowa, 246; Todd v. Old Colony Indemnity Co. 60 N. J. L. 246, 37 & F. River R. Co. 3 Allen, 18, 80 Atl. 609, 612, 44 L.R.A. 213, at page Am. Dec. 49; Flint & P. M. R. Co. 254, commenting upon the Kinney v. Weir, 37 Mich. 111, 26 Am. Rep. Cases, said: “It was held in both 499; Annas v. Milwaukee & N. R. courts that where a common carrier Co. 67 Wis. 46, 57 Am. Rep. 388, 30 of passengers agreed to carry a N. W. 282, 10 Am. Neg. Cas. 546." passenger gratuitously, a valid con- In Northern P. R. Co. v. Adams, tract might be made between the 192 U. S. 440, 48 L. ed. 513, 24 Sup. carrier and such passenger, exempt. Ct. Rep. 408, it was held that a stiping the carrier from all liability ulation in a railroad pass that the even for injuries resulting from its company shall not be liable to the negligence or the negligence of its

user "under any circumstances, servants. But this was distinctly whether of negligence of agents or put upon the ground that, in such otherwise, for any injury to the case, the ordinary relation of a pas- person," violates no rule of public senger and common carrier did not policy, and relieves the company arise, but rather a relation, as the from liability for personal injuries learned chief justice pointed out, resulting from the ordinary neglianalogous to that of a bailor and a gence of its employees to one riding gratuitous bailee."

on the pass, who has accepted it Assuming that the case of a free with knowledge of its conditions. pass to an amusement park entitled In Southern P. Co. v. Schuyler the holder to the privilege of the 227 U. S. 601, 57 L. ed. 662, 43 park and the amusement devices L.R.A.(N.S.) 901, 33 Sup. Ct. Rep.

277, it was held that an employee in court that the railroad company the railway mail service who, in was not liable to one riding on a good faith and with the consent of free pass containing a stipulation the carrier, accepts when off duty that the person accepting and using a free passage in interstate trans- it assumed all risk of accident, portation, does not forfeit his right without mentioning the doctrine of to the benefit of a rule of the local our earlier cases to the effect that law which charges a carrier with the exemption from liability rested the duty to exercise care for the not alone upon the stipulation, but safety of gratuitous passengers, be- upon knowledge of it by the pass cause his gratuitous carriage may holder. And it may be inferred that have been forbidden by the Hepburn there was proof in the Morris Case Act of June 29, 1906 (34 Stat. at L. of the pass holder's knowledge of 584, chap. 3591, Comp. Stat. § 8563, the stipulation, because it is stated 4 Fed. Stat. Anno. 2d ed. p. 337), that the trial judge directed a versince that statute itself fixed the dict for the defendant on the aupenalty for violations of its prohi- thority of Kinney v. Central R. Co. bitions by declaring that the carrier 32 N. J. L. 407, 90 Am. Dec. 675, and passenger shall, in such cases, affirmed by this court in 34 N. J. L. be deemed guilty of a misdemeanor, 513, 3 Am. Rep. 265, which case in punishable by fine. And Mr. Jus

the supreme court lays it down that tice Pitney, delivering the opinion nonliability would exist if such inof the court, observed at page 612: dorsement upon the free ticket was “Neither the letter nor the spirit known to the holder thereof, and in of the act makes an outlaw of him the affirming opinion it is state) who violates its prohibition by either that this court fully agreed with giving or accepting gratuitous in

the supreme court that the conterstate carriage. The deceased no tract under consideration (which more forfeited his life, limb, or presupposes knowledge of its terms safety, and no more forfeited his by both parties) excused the deright to the protection accorded by fendant. the local law to a passenger in his In Lebkeucher v. Pennsylvania situation, than the carrier forfeited R. Co. 97 N. J. L. 112, 116 Atl. 323, its right of property in the mail car where a woman delivered two packupon which the deceased rode. His

ages to an agent in charge of the right to safe carriage was not de- parcel room of the defendant's derived, according to the law of Utah, pot

pot in Newark, and had two from the contract made between tickets or receipts for them given him and the carrier, and therefore to her, upon which were notices was not deduced from the supposed limiting liability of the railroad violation of the Hepburn Act. It company in the event of loss, bearose from the fact that he was sides such notices posted in the para human being, of whose safety the cel room, she was permitted to plaintiff in error had undertaken recover for the value of the package the charge. With its consent he which was mistakenly delivered to had placed his life in its keeping, another person, because the trial and the local law thereupon imposed court found as a fact that the plaina duty upon the carrier, irrespec- tiff did not know, and had not been tive of the contract of carriage. apprised of, the contents of the The Hepburn Act does not deprive the notices limiting liability; and one who accepts gratuitous car- Mr. Justice Katzenbach, delivering riage, under such circumstances, the opinion of the supreme court, of the benefit and protection of the said at page 116: “We cannot see law of the state in this regard." any sound basis for holding dif

It is noticeable that in Morris v. ferently (as to the effect of notice West Jersey & S. R. Co. 87 N. J. L. not brought home to the party) 579, 94 Atl. 593, it was held in this merely because the relation between

« PreviousContinue »