5.73 CARRIERS
FOR HIRE (Approved 6/88)
A. General
Duty of Common Carriers to Passengers
In this case (you may find from the
evidence that) the defendant is what is known in the law as a common
carrier. A common carrier undertakes for
pay to carry all persons who apply for passage, so long as there is room and
there is no legal excuse for refusing.[1] Typical common carriers are railroads, street
cars, subways, elevated railroads, buses, steamships, airplanes, taxicabs and
others similarly engaged in public transportation.
A common carrier must exercise a high
degree of care to protect its passengers from dangers that are known or are
reasonably foreseeable. Carriers must
use the utmost caution to protect their passengers, the kind of caution that is
characteristic of a very careful and prudent person. A carrier must act with the highest possible
care consistent with the nature of the undertaking involved.[2]
1. Disabled Passenger
Indeed, where the carrier, through its
employees, is aware that a passenger about to board has a physical disability,
the carrier owes that passenger an even greater degree of attention than if the
passenger had no physical disability.[3]
2. Against Acts of Fellow Passengers
This includes the duty to protect
passengers from wrongful acts of co-passengers, if the utmost care could have
prevented those acts from injuring a passenger.
If a danger was known or reasonably could have been anticipated, the
carrier has a duty to protect its passengers from any injury that could be caused
by that danger.[4]
3. As to Acts of Third Parties
This includes the duty
to protect passengers from wrongful acts of a third party, if the utmost care
could have prevented those acts from injuring a passenger. If a danger was known or reasonably could
have been anticipated, the carrier has a duty to protect its passengers from
any injury that could be caused by that danger.[5]
4. Sudden Stops or Jerks
A common carrier must exercise a high
degree of care in starting, stopping or decreasing the speed of a vehicle so as
not to imperil the safety of passengers.
A violent stop, jerk or lurch which
would have been unlikely to occur if proper care had been exercised justifies
the inference of negligence in the operation or maintenance of the vehicle or
its brakes.[6]
5.
Overcrowding
The overcrowding of a passenger
vehicle without more is not in and of itself negligent. However, it is well recognized that
overcrowding creates dangers. A common
carrier must exercise a high degree of care to protect its passengers from
reasonably foreseeable dangers arising from overcrowding.[7]
B. When Carrier-Passenger Relationship
Starts
1. At Station
A person becomes a
passenger when he/she enters upon the station grounds of the carrier through
the approaches provided by the carrier and that person has the intention of
becoming a passenger. If you find that
(a) plaintiff entered the station grounds through the usual way provided for
passengers and, (b) plaintiff had the intention of becoming a passenger by
paying the fair (either before or after entering the [train]), then plaintiff
had become a passenger. He/She therefore
was entitled to the care owed by a carrier to a passenger.[8]
A person becomes a passenger when
he/she boards the carrier’s vehicle, intending to become a passenger, and the
carrier actually or impliedly consents to the person becoming a passenger. The person must be present at a proper time
and in a proper manner and at some place under the control of the carrier to
allow the carrier to have the opportunity to exercise the degree of care which
the law requires on behalf of the passenger.
The carrier must know the person intends to board the vehicle. Knowledge by the carrier may be either actual
or what a reasonable carrier should have been aware of by reason of the acts
and conduct of the person and by the facts and circumstances presented.[10]
C. Duty as to Transportation Facilities
A common carrier has a duty to
exercise reasonable care in the construction and maintenance of station
buildings, platforms and approaches, so that they are reasonably safe for
passengers to use them.[11] Passengers have a right to assume that those
facilities are reasonably safe.[12] If a carrier fails to meet this duty — by
constructing or maintaining the property so as to make it likely to be a source
of danger to passengers and others lawfully using the station[13]
— then the carrier is liable to persons who enter the facilities in response to
the carrier’s invitation and are then injured as a result of the carrier’s
negligence.
[Add the following paragraph if a danger existed
due to weather:]
If there is a danger to
passengers from the effects of weather, for example, a slippery condition due
to ice, if that danger reasonably could be anticipated by the carrier, the
carrier has a duty of a high degree of care to its passengers.[14] In deciding whether the carrier met its duty,
you should understand that the carrier must have had reasonable time to remove
or remedy the condition resulting from the effects of weather.[15]
[Add the following paragraph when carrier does
not own or control facilities:]
The carrier owes that duty of
reasonable care to passengers even if it does not own or control the
facilities. That duty cannot be changed
by any agreement between the carrier and the terminal company.[16]
1. Place of Stopping Vehicle
This
includes the duty to select a reasonably safe place for the passenger to get
off the vehicle and leave. If you find
that the carrier, in selecting a place to unload plaintiff, failed to exercise
its high degree of care, and as a result that brought about his/her injuries,
you should find for plaintiff.[18] But, understand, that a common carrier does
not have a duty to anticipate every uneven surface or defect in the road or
alongside of the road, and then stop the vehicle to avoid the remote
possibility of a passenger stepping on some uneven surface or in a depression
which, even though the carrier exercised reasonable watchfulness, did not appear
to be dangerous.[19]
2. Leaving Station
This includes the duty to use
reasonable care to provide a safe means for passengers to exit the
station. The duty to passengers does not
end when the passengers are safely carried to their destination, but continues
on while they are leaving the station where they got off the vehicle.[20]
E. Persons on Railroad Tracks
Plaintiff says that he/she was injured
when he/she was hit by a moving train.
The railroad company[21]
claims that it lived up to its duty to plaintiff and, additionally, plaintiff
was more responsible for the accident than it was. The
first decision you’re going to have to make is what plaintiff’s status was,
what category plaintiff was in when he/she was on the railroad tracks.[22] The law says that when a person is on
another’s property, that person falls into one of three possible categories: he/she
is an invitee or a licensee or a trespasser.
So when I say you must decide what status plaintiff had when the
accident took place, that means that you are to determine whether plaintiff was
an invitee, a licensee or a trespasser. That is important because, depending on
your decision as to plaintiff’s status, there are different duties or standards
of care that the railroad company was required to meet. In other words, if plaintiff was an invitee,
the railroad company was obliged to meet a particular duty — to act in a
certain way — toward plaintiff; if plaintiff was a licensee, there is a
different duty that applied; and if plaintiff was a trespasser, then the
railroad company owed a third kind of duty to him/her.
I begin by describing what an invitee,
a licensee and a trespasser each is. As
you will see, the proper category for a particular person is determined by the
circumstances that brought him or her onto another’s property.[23]
An invitee is a person who is on
another’s property for the benefit of the property owner,[24]
or because his/her visit was induced and encouraged by the owner.[25] For example, if I am a homeowner and you are
delivering fuel oil to me at my home, when you come onto my property, you would
be an invitee since you would be there, at least in part, for my benefit, which
is that I now have fuel oil available as I need it. Or, as another illustration, if I am a
merchant operating a store open to the public, I am encouraging you to come
into my store by being open to the public.
Again, you would be an invitee.
The next
category is that of a licensee. A
licensee is a person who, one, is not an invitee, and, two, is permitted to go
onto another’s property.[26] Routine customs and practices often allow you
to decide whether a land owner permits or is willing to have another party come
on to the property.[27] Those customs may be such that it is entirely
reasonable for someone to assume that his/her presence is permitted unless
he/she is told otherwise. An example of
a licensee might be someone who often cuts across a corner of one’s property as
a shortcut, where there is no fence to prevent that. Or a licensee might be a neighbor who goes
next door to borrow some tools or pay a social visit.
The final category is a
trespasser. A trespasser is someone who
goes onto or remains on another’s property and is neither an invitee nor a
licensee. A trespasser would be someone
who is not on another’s property for the benefit of the owner, and who is
neither invited nor allowed to go onto the property. We do have a law in New Jersey
To repeat, the first thing you must
decide is what plaintiff’s status was when he/she was on the railroad
tracks. You do that by looking at all
the evidence and then deciding was it more likely than not that plaintiff was
an invitee; if not, then you judge whether all the evidence shows it was more
likely than not that plaintiff was a licensee; if not, then plaintiff must have
been a trespasser.
If you decide that plaintiff was an
invitee, then the railroad company had a duty to exercise ordinary and
reasonable care to protect plaintiff. It
had to take steps which were reasonable and prudent for plaintiff’s safety.[31]
If you
decide that plaintiff was a licensee, then the railroad company had a duty to
not perform acts which are willfully injurious.[32] In other words, the railroad could not
intentionally do something that would be highly likely to cause injury or
death.[33] And where there was a concealed danger known
to be present, the railroad company was bound to give warning of it.[34]
If you decide that the plaintiff was a
trespasser,[35]
then the railroad company had a duty
[Where
plaintiff is adult trespasser]
to refrain from acts
which are willfully injurious, that is, the railroad could not intentionally
set things up so as to make it highly likely that death or injury would result.[36]
[Where
plaintiff is infant trespasser]
to the extent that it
is foreseeable that a child would intrude onto the railroad tracks, to exercise
reasonable care so as to protect a youngster against an unreasonable risk of
harm.[37] What is reasonable care is measured by the
foreseeability of a child trespassing and the extent of risk of harm. As the foreseeability of trespass increases
and as the risk of harm increases than the more reasonable care must be used.[38]
If a least five out of six of you have
judged that the railroad company did not live up to its duty of care to
plaintiff, you will then have decided that the company was negligent. The next question for you to decide is
whether that negligence proximately caused plaintiff’s injury. By that, I simply mean that something
happened to set the chain of events in motion to naturally and probably make
the accident take place; in other words, was the company’s negligence, assuming
you find it was negligent, a substantial factor in producing the accident?
If you decide that the train company
was negligent and that that negligence proximately caused plaintiff’s injury,
you’re next going to have to determine the correctness of the company’s claim
that plaintiff was also negligent.
If you find that plaintiff was a
trespasser, then I tell you as a matter of law that plaintiff was to some
extent negligent.[39] You then must go on to compare the negligence
of the parties.[40]
If you find that
plaintiff was not a trespasser, it may still be that plaintiff was to some
extent negligent. If you decide that
plaintiff was not on the railroad tracks voluntarily, he/she was not
necessarily negligent.[41] But, based on all of the circumstances other
than plaintiff’s involuntary presence on the tracks, such as the reasons
leading up to plaintiff being in a position to end up on the tracks, not of
his/her own accord, you must decide whether the train company has shown by the
greater weight of the evidence that plaintiff was him/herself negligent.[42] If you find that plaintiff was negligent to
any extent, and that that negligence proximately caused his/her injury, as I
have described that concept to you, you then must go on to compare the negligence
of the parties.[43]
F. Liability for Loss of or Damage to Goods
Shipped
In this case (you may find from the
evidence that) the defendant is what is known in the law as a common
carrier. A common carrier undertakes for
pay to carry the goods of all persons who want to ship them.[44] Typical common carriers are railroads,
trucking companies, boats, airplanes and others similarly engaged.
A common carrier is
absolutely and totally responsible for the loss of or damage to property given
to the carrier for transportation,[45]
with an exception that I shall describe to you in a moment.[46] The shipper — that is, the person who ships
the goods using a common carrier — need only prove, one, delivery of the
property in good condition to the common carrier and, two, either failure to
return the goods or the return of those goods in a damaged condition. If these are shown and there is no other
proof, plaintiff is entitled to your verdict.[47] Due care or lack of negligence by the carrier
is not meaningful.
I told you a minute ago that there is
an exception which can excuse a carrier from its absolute responsibility to a
shipper. I want to describe this to you
now.
[Charge Appropriate
Exception, as Applicable, to Facts of Case:]
[1. The
exception comes about if the loss or damage was caused solely by an act of
God. An act of God is a natural event
such as lightning, violent winds or seas or other accident of nature without
any intervention by people. If the loss
or damage is caused by human conduct along with an act of God, the carrier is
liable. The carrier is excused only if
an act of God solely brought about the loss or damage.]
[2. The
exception comes about if the loss or damage was caused solely by public
enemies, that is, an act of war. In that
event, the carrier is not liable.]
[3. The
exception comes about if the loss or damage was caused solely by the inherent
nature of the property. By that I mean
that the goods were of such a nature as to spoil or deteriorate by the mere
passage of time even though they are carried in a manner suitable for their
transportation.[48] For example, if eggs are being shipped, and
if you find that eggs spoil with the passage of time, and if the carrier
shipped the eggs in an appropriate and suitable manner, for instance, in a
refrigerated truck, but despite that and solely because of the length of the
trip and the time that it took, the eggs spoiled, then the carrier would not be
liable. But if you find that the carrier
delayed the transportation and that caused too much time to pass, then the
carrier would be liable. The carrier has
a duty to carry the shipment safely with due regard to its perishable nature.]
[4. The
exception comes about if the loss or damage was caused by the fault of the
shipper. If the shipper packs the goods
improperly and that improper packing is not apparent to the carrier by ordinary
observation and the loss or damage results from the improper packing, the
carrier is not liable. But if the
improper packing is apparent and the carrier accepts the goods without a
special agreement limiting its liability, the carrier is liable.[49]]
The need or burden to prove that the
loss or damage was caused solely by the exception that I have described to you
is upon the carrier. The carrier must
show, by the greater weight of the evidence, that the exception applies. [The need to prove that there was an
agreement limiting its liability is also on the carrier and that agreement must
be interpreted most favorably to the shipper and against the carrier.[50]]
Source: https://njcourts.gov/attorneys/civilcharges.html
[2] Harpell v. Public Serv. Coord. Transp., 20 N.J.
309, 316-317 (1956); Pope v. Veterans
Taxi Serv., 97 N.J. Super. 274, 277 (App. Div. 1967).
[5] Id.
[8] Exton v. Central Railroad Co., 62 N.J.L.
7, 12 (Sup. Ct.
[9] As to
transferring from one vehicle to another, see
Walger v. Jersey City Railway Co., 71 N.J.L.
356 (Sup. Ct.
[10] Martin v. West Jersey Railroad Co., 87 N.J.L.
648, 649 (E. & A. 1915); Bernadine v.
Erie Railroad Co., 110 N.J.L.
338, 343 (E. & A. 1933).
[11] Buchner v. Erie Railroad Co., 17 N.J.
283, 285-286 (1955); Bohn v. Hudson &
Manhattan Railroad Co., 16 N.J.
180, 185 (1954).
[15] Id.
[16] Horelick v. Penna. Railroad Co., 24 N.J.
Super. 413, 417 (App. Div. 1953), aff’d, 13 N.J. 349, 354 (1953).
[17] After
stating general duty, see Model Civil
Charge 5.30A.
[21] The
statutory limitation on liability, N.J.S.A.
48:12-152, only applies to a railroad company, not to its employees. Potter
v. Finch & Sons, 76 N.J. 499,
503 (1978).
[22] Benedict v. Podwats, 109 N.J.
Super. 402, 407 (App. Div. 1970), aff’d 57 N.J. 219 (1970): “Indeed,
the ascertainment of that status is an essential preliminary to the application
of the standard of care to be exercised by the land occupier.”
[24] Id.
[25] Handelman v. Cox, 39 N.J.
95, 105-110 (1963). Modify language of
charge if the railroad company is possessor, but not owner, of railroad tracks.
[28] N.J.S.A. 48:12-152. See also to Demetro v. Penna. Railroad Co., 90 N.J. Super. 308 (App.
Div. 1966), where child held not a trespasser when she was killed after going
onto tracks to push three smaller children from path of train.
[29] By analogy
to Baer v. Sorbello, 177 N.J. Super.
182, 184-185 (App. Div. 1981).
[30] See Eden v. Conrail, 87 N.J. 467 (1981), where plaintiff
suffered an epileptic seizure while standing on railroad platform awaiting
train and fell onto train tracks.
[31] Handleman v. Cox, 39 N.J.
95, 111 (1963). Note should be made of
the potential assertion that a railroad can be classified as a dangerous
instrumentality. See Renz v. Penn Central Corp., 87 N.J. 437, 462 (1981).
[35] The
Supreme Court, in Renz, supra, at 463, expressly did not
determine the nature of the standard of care or if the railroad is a dangerous
instrumentality.
[39] In Renz, supra, at 460, it was held that a trespasser is at least minimally
negligent within scope of railroad immunity act, N.J.S.A. 48:12-152.
[40] Court
should continue by charging principles of comparative negligence under N.J.S.A. 2A:15-5 et seq.
[43] Court
should continue by charging principles of comparative negligence under N.J.S.A. 2A:15-5.1 et seq.
[45] NOPCO Chem. Div. v. Blaw-Knox Co., 59 N.J.
274, 281 (1971); W.J. Casey Trucking v.
G.E., 151 N.J. Super. 151, 155 (Law Div. 1977).
[46] Although
there are four exceptions, the court should charge only the exception which
factually may apply to the case.
[47] Jos. Toker Co. v. Lehigh Valley Railroad Co., 12 N.J.
608, 612 (1953); see also, Silver Lining, Inc. v. Shein, 37 N.J. Super.
206, 211-212 (App. Div. 1955).
[49] W.J. Casey Trucking v. G.E., 151 N.J.
Super. 151, 157-158 (Law Div. 1977); Lincoln Farm Products Corp. v. Central
Railroad Co., 81 N.J. Suer. 161, 166-168 (App. Div. 1963).
[50] To be
charged only if fourth exception is given.
For basis, see Reich v. McGill,
119 N.J.L. 358, 361 (E.&A. 1937);
Hill v. Adams Express Co., 82 N.J.L. 373, 377 (E.&A. 1911).
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.