(93 N. J. Law, 360)

ROM v. HUBER.

(108 A.)

proceeded directly from the hot room to the door of the steam room. As soon as he

(Supreme Court of New Jersey. Nov. 7, 1919.) opened the door, he looked down and saw a

(Syllabus by the Court.)

white spot, which looked like soap. Before he could change his step, he stepped on it, slipped, and fell. The allegation is that the

1. NEGLIGENCE 32(1), 121(3)-DUTY OF defendant was negligent in allowing the

PROPRIETOR OF BATHING ESTABLISHMENT;
RES IPSA LOQUITUR.

The proprietor of a bath establishment owes to his customers a duty to exercise reasonable care to maintain the premises in a safe condition. His duty to his patrons is satisfied when he uses reasonable care to maintain the premises in a safe condition, for their proper use by the patrons. He does not insure the safety of his patrons against accident. The maxim res ipsa loquitur has no application to the facts of this case.

2. NEGLIGENCE 48-LIABILITY OF PROPRI ETOR OF TURKISH BATHS FOR INJURY TO PATRON.

The condition that produced the accident must have been in fact brought to the previous notice of the proprietor, or, failing in proof of such actual notice, the condition had existed for such a space of time as would have. afforded the proprietor sufficient opportunity to make proper inspection as to the safety of the place. Following Schnatterer v. Bamberger Co., 81 N. J. Law, 558, 79 Atl. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139.

soap to be on the floor. The defendant therefore should be chargeable for the injuries sustained.

The plaintiff assigns four reasons why the judgment entered should be set aside and reversed. Two refer to the charge of the trial judge and two to his refusal to charge as requested.

[1] The passage in the charge complained of is based directly upon the decision of the Court of Errors and Appeals, in the case of Schnatterer v. Bamberger & Co., 81 N. J. Law, 558, 79 Atl. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139. The injury sustained in that case was by a customer tripping in a department store in the city of Newark. The trial judge in this case charged the jury the principles of law applied in that case, viz. that the defendant's duty to the plaintiff was to exercise reasonable care to maintain the premises in a safe condition. His duty to the plaintiff was satisfied when he used reasonable care to maintain the premises in a safe

Appeal from Court of Common Pleas, Es- condition for the proper use by the plaintiff. sex County.

Action by Martin Rom against Frank Huber, doing business as Huber Turkish Baths. Judgment for defendant, and plaintiff appeals. Affirmed.

.

The defendant is not an insurer of the safety of his patrons against accidents. It must appear that the condition which produced the fall had either been in fact brought to the previous notice of the defendant, or, failing in proof of such actual notice, the con

Argued June term, 1919, before GUM-dition had existed for such a space of time MERE, C. J., and MINTURN and BLACK, JJ. as would have afforded the defendant suffiKalisch & Kalisch, of Newark, for appel- cient opportunity to make proper inspection as to the safety of the place.

lant.

Raymond, Clancy, Marsh & Ellis, of Newark, for respondent.

[2] The argument of the plaintiff is: The two cases are distinguished in principle; the Bamberger Case is not applicable. The quesBLACK, J. The defendant in this case tion which the trial court should have subwas sued to recover damages for personal mitted to the jury was whether the defendinjuries. The trial resulted in a verdict for ant by his employés was responsible for the the defendant. The essential and undis- presence of the soap in the steam room, and puted evidence in the case is that the plain- by reason of its presence on the floor the tiff, Martin Rom, on the night of February plaintiff was injured. The principle applied 21, 1918, went to a Turkish bath establish- by the trial judge is illustrated in many cases ment conducted by the defendant, Frank in our courts, such as Higgins v. GoerkeHuber, in the city of Newark, for the pur- Krich Co., 91 N. J. Law, 464, 102 Atl. 37; pose of taking a bath. After spending some MacDonough v. Woolworth Co., 91 N. J. Law, time in the office and paying the required 677, 103 Atl. 74. The maxim or doctrine of fee, he went to the place provided for un- res ipsa loquitur has no application to the dressing, and from there to the hot room and facts of this case. Conover v. Delaware, etc., later on to the steam room. It is further R. R. Co., 92 N. J. Law, 602, 106 Atl. 384. undisputed that while in the steam room the The other reasons assigned for reversal have plaintiff fell and sustained the injuries for no legal merit. They require no extended which he brought the suit. The plaintiff was discussion. There being no error in the the only witness to testify to the circum- récord, the judgment is therefore affirmed, stances of the fall. His testimony is that he with costs.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(94 N. J. Law, 52)
DESMOND v. BASCH & GREENFIELD.

(No. 36.)

(Supreme Court of New Jersey. Nov. 25, 1919.) 1. MUNICIPAL CORPORATIONS Cmm 706(6) CAUSE OF COLLISION AT STREET INTERSECTION QUESTION FOR JURY.

In an action by a motorcycle policeman for injuries received in a collision at a street intersection with a motor truck, questions of speed of the respective vehicles, warnings given by each of its approach, and the position of each on its respective highway held questions of fact for the jury.

2. MUNICIPAL CORPORATIONS 706(7)-CON-
TRIBUTORY NEGLIGENCE OF MOTORCYCLE PO-
LICEMAN INJURED IN STREET COLLISION FOR
JURY.

In an action by a police officer, injured in a
collision at a crossing between his motorcycle
and a motor truck, whether plaintiff was pur-
suing a violator of the Motor Vehicle Law, or
was recklessly operating a dangerous machine
at a speed of from 40 to 60 miles an hour at the
intersection of two highways that were much
traveled, held for the jury.
3. MUNICIPAL CORPORATIONS 705(2)-Mo-
TORCYCLE POLICEMAN NOT EXCEPTED FROM
MOTOR VEHICLE LAW.

A motorcycle policeman is not excepted from the provisions of the Motor Vehicle Law concerning speed of such vehicles, and while he has a right to overtake violators of the law, and has the right of way for that purpose, he must exercise that right with due regard to the rights of others lawfully upon the highway, and he cannot willfully and must not carelessly run down others lawfully on the street, having no exclusive right in the street.

Action by William F. Desmond against Basch & Greenfield, a corporation. Verdict for defendant. On rule to show cause. Rule discharged.

Argued June term, 1919, before the CHIEF JUSTICE, and MINTURN and BLACK, JJ. Wilbur A. Heisley, of Newark, for plain

tiff.

The defendant's chauffeur, Bauer, testified that the plaintiff was going from 45 to 60 miles an hour at the time of the accident. A disinterested witness who testified that he

was competent to judge distance and speed stated that the plaintiff was going 30 to 35 miles at the time of the accident.

The plaintiff testified that he sounded his horn as he approached the intersection, but other witnesses testified that he gave no warning whatever of his approach. He also testified that he heard no warning given by the defendant's truck as it approached the intersection, but the testimony of the defendant's witnesses shows that a signal was given of its approach by the blowing of a whistle.

Plaintiff claimed that the defendant's Testimony for the defendant showed that the truck was on the wrong side of the street. truck was on the right side of the road in the direction in which he was going.

[1] The questions of speed of the respective vehicles, warnings given by each of its approach, and the position of each on its respective highway approaching the crossing The were questions of fact for the jury. great weight of the evidence was in favor of the defendant, on the various contentions as to negligence and contributory negligence.

The plaintiff testified that he was pursuing an automobile that had passed to the left of a street car, at a point 300 feet from the scene of the accident, that at the time he was 60 feet from the automobile, sitting on his motorcycle ready to start without the loss of a moment, and that he did so start. The automobile at no time went faster than 20 miles an hour, but his speed was 35 to 40 miles.

[2] It was therefore for the jury to determine whether the plaintiff was pursuing a violator of the Motor Vehicle Law or whether he was recklessly operating a dangerous machine at a speed of from 40 to 60 miles an hour, at the intersection of two highways that were much traveled. We think the trial judge did not err in his charge as to speed,

Collins & Corbin, of Jersey City, for de- nor as to the relative rights of the parties on the highway.

fendant.

MINTURN, J. The accident happened on September 8, 1918, at about 7:30 a. m., at the intersection of Bloomfield and Summer avenues, in Newark. The plaintiff, a motor policeman, was operating his motorcycle in a westerly direction on Bloomfield avenue, while the defendant, through its servant, was operating an automobile truck, which was on government work, in a southerly direction on Summer avenue. Plaintiff was going 40 miles an hour just before the accident, and he slowed down as he approached the intersection of the two avenues to not more than 20 miles an hour.

The fact that the Motor Vehicle Act (3 Comp. St. 1910, p. 3426 et seq.) expressly exempts certain vehicles, not including the plaintiff's from the provisions thereof pertaining to speed, implies the exclusion of any other species of exemption. "Expressio unius est exclusio alterius."

The rule governing the situation is laid down by the Court of Errors in the case of Winch v. Johnson, 104 Atl. 81, and the instruction of the court is in accord with what the Court of Errors said in that case, as well as with the declaration of this court in Paulson v. Klinge, 104 Atl. 95.

[3] The policeman was not included in the

(108 A.)

exceptions contained in the Traffic Act, and J. Victor D'Aloia and Carl Abruzzese, both of Newark, for plaintiffs in error.

while we must notice his right to overtake violaters of the law, and the right of way conceded to him by statutes and ordinances, for that purpose, he must exercise that right with due regard to the rights of others lawfully upon the highway, and not to their exclusion therefrom. His right to the street is not exclusive, and he cannot willfully and must not carelessly run down others lawfully on the street. The fundamental commonlaw rule, notwithstanding conceded priorities of right upon the highway, still persists as the basic conception of relative rights. "Sic utere ut alienum non lædas," is the basic maxim determinative of relator's rights. We conceive the court's charge was based upon a correct conception of this fundamental relationship, and as such we deem it an accurate statement of the law.

The rule will be discharged, with costs.

(93 N. J. Law, 362)

STATE v. FIORE et al.

Pierre P. Garven, Prosecutor of the Pleas, of Jersey City, for the State.

BLACK, J. The plaintiffs in error, Louis Fiore and Ciro Matarazzo, with James Devlin and others, were indicted by the Hudson county grand jury for the murder of John Joyce, on the evening of October 28, 1918. They were tried in the Hudson oyer and terminer. The two defendants named and James Devlin were found guilty of murder in the second degree. The others were acquitted. The two defendants prosecute their writ of error to review the judgment against them. The whole record is brought up under section 136 of the Criminal Procedure Act.1 The assignments of error and the specifications of causes for reversal are identical. There are ten of each. But by a stipulation in writing, the counsel have contined the argument to the first, seventh, and eighth.

Succinctly stated, the essential facts are as follows: The defendants were engaged as pickets in a garment workers' strike in the city of Newark. The deceased, John

(Supreme Court of New Jersey. Nov. 7, 1919.) Joyce, was, or was believed by the defend

(Syllabus by the Court.)

1. CRIMINAL LAW

ants to be, a strike breaker, having at the time of his death been employed as a tailor

693-OBJECTION TO AD- in a clothing manufactory in Newark. On

VERSE TESTIMONY AFTER RECEPTION. The rule is established that counsel cannot take the chance of testimony-making in his favor, and, if it happens to be adverse, then interpose an objection.

2. CRIMINAL LAW

748-EXPRESSION OF

COURT'S OPINION AS TO GRADES OF CRIME.

It is not legally objectionable for a trial judge to express to the jury his opinion as to the grade of the prisoner's crime under the evidence, in case the jury shall find the prisoner guilty.

3. CRIMINAL LAW 748, 763, 764(3, 4)—INSTRUCTION TO CONVICT OF MANSLAUGHTER OR

ASSAULT AND BATTERY ERRONEOUS.

the evening of October 28, 1918, the defendants met in Newark with a number of strikers, at about the time when the garment workers were leaving their places of employment, at the end of the day's work. Joyce, the deceased, was pointed out to the defendants by a number of strikers, and the defendants were told to "go after that man; he lives in Jersey City." Accordingly, they followed Joyce. They boarded the same tube train with him at Newark; when he left the train at the Grove Street Station in Jersey City, they did likewise. The three defendants named followed Joyce for a distance of two or three blocks, when Devlin

It is not open to the jury, in a case of crim-hastened ahead of his two companions and inal homicide, to find the prisoner guilty of manslaughter or assault and battery, when the record is barren of any proof tending to support such a finding. It is not error for the trial judge to so state, in the charge to the jury.

from behind struck Joyce on the head with a piece of iron pipe, which Ciro Matarazzo, the defendant, purchased that afternoon in company with the other two defendants and which had been provided for the purpose. Fiore and Matarazzo knew that DevError to Court of Oyer and Terminer, lin had possession of the iron pipe. They Hudson County. knew that it was purchased and intended Nine Louis Fiore and Ciro Matarazzo, with for use in doing violence to Joyce. James Devlin and others, were indicted days after Joyce died as the result of infor murder, and Fiore, Matarazzo, and Dev-juries to his head inflicted by the blow. lin were convicted of murder in the second in evidence a photograph of the body of the [1] The first error alleged is in admitting degree and the others were acquitted, and in evidence a photograph of the body of the deceased. The record shows that the photoFiore and Matarazzo bring error. Affirmed. graph was identified and marked for identiArgued June term, 1919, before GUM-fication, when the counsel for the defendant MERE, C. J., and MINTURN and BLACK, cross-examined the witness, making direct JJ. use and references in his cross-examination

For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes
12 Comp. St. 1910, p. 1863.

to the photograph itself. The court will not, beyond a reasonable doubt, by the proofs permit counsel to speculate in the use and in the cause, that death was produced by the introduction of evidence and if it happens criminal act of the defendants. This is in to be adverse then interpose an objection. harmony with all the cases in our courts on Cunningham v. State, 61 N. J. Law, 67, 38 this point. State v. Biango, 75 N. J. Law, Atl. 847; State v. Hummer, 73 N. J. Law, 284, 68 Atl. 125, affirmed 79 N. J. Law, 523, 714, 65 Atl. 249. After this Dr. John H. 80 Atl. 487; Genz v. State, 58 N. J. Law, O'Neill, a witness for the state, who had 482, 34 Atl. 816; State v. Moyniham, 106 Atl. known the deceased "very well" and who 817; State v. Valentina, 71 N. J. Law, 555, had been his physician for a "number of 60 Atl. 177; State v. Agnesi, 92 N. J. Law, years," testified that the photograph was a 638, 106 Atl. 893, 108 Atl. 115. true representation of the body of John Joyce. It was then admitted in evidence. This ruling of the trial court in admitting the photograph was not error.

[2, 3] The stress of the argument of the defendant, however, is aimed at the trial judge's charge to the jury and that part of it in which he said:

This disposes of all the assignments and specifications in the cause argued by the defendants' counsel.

Finding no error in the record, the judgment is therefore affirmed.

(93 N. J. Law, 414) CARBERRY v. DELAWARE, L. & W. R. CO. (No. 39.)

"Many of the facts in this case are not the subject of any dispute, and therefore I wish to instruct you that there can be no verdict in this case of either manslaughter or assault and battery, for the reason that the testimony is (Court of Errors and Appeals of New Jersey.

Nov. 17, 1919.)

(Syllabus by the Court.)

MASTER AND SERVANT 403-WORKMEN'S COMPENSATION ACT; BURDEN OF PROOF ON PETITIONER.

harmonious on the point that there was no sudden outburst of passion which would be necessary to reduce the offence to manslaughter; and the evidence is also undisputed that the defend-1. ant Devlin, who was the actual perpetrator, provided himself with a deadly weapon in order that he might secure for himself the advantage In a proceeding in the court of common in the event of any combat arising. This har-pleas under the New Jersey Workmen's Commonious evidence precludes any verdict of man-pensation Act (chapter 95, P. L. 1911), the burslaughter. Neither can there be any verdict den is upon the petitioner to prove a under the count charging assault and battery, within the state statute; that is, to show, afbecause the evidence is undisputed that the firmatively, that the decedent was engaged at killing of Joyce resulted from the use of ȧ the time of the accident in a service which was deadly weapon employed in a deadly manner, not regulated by the federal Employers' Liabiland therefore your verdict must relate either ity Act of 1908 (U. S. Comp. St. §§ 8657-8665). 2. MASTER AND SERVANT 418(5) - WORKMEN'S COMPENSATION ACT; PREJUDICE FROM DEFENDANT'S ASSUMPTION OF BURDEN OF

to one of the degrees of murder in this case, or else it must be a verdict of acquittal."

PROOF.

An examination of the record amply demonstrates that the above statement by the trial judge in the charge to the jury was In a proceeding under the New Jersey accurate. The state's case bearing on the Workmen's Compensation Act (chapter 95, P. circumstances attending the assault of Joyce L. 1911), where the only matter in controversy is found in the voluntary confession of the was whether or not the decedent at the time of three defendants, James Devlin, Louis Fiore, the accident was engaged in interstate comand Ciro Matarazzo. They substantially merce, the petitioner was not prejudiced in his agree. They each testified on the defense, rights by the mistaken assumption and announcement of counsel for the railroad company with no material difference. Devlin, the (the employer) that the burden of proof was defendant, who committed the assault, was upon the company, nor by the fact that the the only eyewitness, but there was little or company went forward with its proof; it ap no variation from the details, which led up pearing that such mistaken notion as to the to the assault, as testified to by each of burden of proof was shared by counsel for the the defendants. In this state of the evi- petitioner, and that both before and after such dence, the trial judge was justified in charg-proof was put in opportunity was given the ing the jury as he did, as was pointed out petitioner to produce testimony of his own. in the case of State v. Pulley, 82 N. J. Law, 3. COMMERCE 27(5)-ENGAGED IN "INTER584, 82 Atl. 857. The complete answer to STATE COMMERCE." the contention of the defendants' counsel is if they had been convicted, either of manslaughter or assault and battery, such a finding would rest, not upon any proofs in the cause, but upon mere conjecture. This could never be accepted as a fulfillment by the state of its obligation to satisfy the jury

A baggage agent whose duty was to meet both interstate and intrastate trains of the railroad company by whom he was employed, and to put on and take off baggage, and who was killed by an interstate train whilst in the performance of that duty, must be held to have been engaged in "interstate commerce" at the time he was killed, and compensation cannot

(108 A.)

be awarded to his administrator under the New [fore it, to determine that the decedent at the Jersey Workmen's Compensation Act (chap- time of the accident was engaged in interter 95, P. L. 1911); the federal Employers' Lia- state commerce. bility Act of 1908 being exclusive in such case. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Inter-ney at the hearing in the common pleas court, state Commerce.]