pellant, are not controlling; for in each the workman voluntarily put his hand on the crane track without necessity, when he might have steadied himself conveniently and safely by holding to a brace or flange. Plaintiff was doing necessary work, and the fact that he had not been directed by the foreman to set that particular post is unimportant. to stand upon this girder, where he was 197 Atl. 1049, and McNeil v. Clairton Steel struck and permanently injured by the end Co., 213 Pa. 331, 62 Atl. 923, cited for apof the moving crane beam. There was some conflict in the evidence, but it justified a finding that defendant's crane foremen knew of the presence of the workmen upon and around the girder, and had promised to protect them, and that for the three days preceding the accident such protection had been uniformly given by sounding the gong whenever the crane was moving in the vicinity of the workmen. Admittedly no warning was given on the occasion of the accident. The crane operator could have seen plaintiff in ample time to avoid the accident had he glanced that way, but excuses his failure to do so on the ground that it was his duty to VIRTUE v. CIVIL SERVICE COMMISSION look down at the floor, and that he had no knowledge of plaintiff's presence on the girder. The trial judge submitted the case to the jury, who found for the plaintiff; and, from judgment entered thereon, defendant brought this appeal. [1, 2] The only complaint of appellant is 1. The judgment is affirmed. (97 N. J. Law, 80) OF NEW JERSEY. (Supreme Court of New Jersey. Feb. 21, 1922.) (Syllabus by the Court., Municipal corporations 211-Deputy or assistant to business manager held not entitled to be placed in unclassified or exemptclass by Civil Service Commission. of education of any municipality which has A business manager, appointed by the board adopted the Civil Service Act of the state is not the head of a department entitling him to be placed in the unclassified or exempt class by the Civil Service Commission of the state, and therefore his deputy, appointed by the board of education, is not entitled to be placed in the unclassified service because he is a deputy, or an assistant of a principal executive officer authorized by law to act generally for and in place of his principal, to which the law limits the right to exemption from a civil service examination of any deputy. that the trial court should have decided the case in its favor as a matter of law, and that we cannot sustain. The work being done was for the mutual benefit of all parties, and plaintiff was there by the implied invitation of the defendant company, which was therefore bound to use reasonable care for his safety. Reed v. Pitts., C., C. & St. L. Ry. Co., 243 Pa. 562, 90 Atl. 359; Newingham v. J. C. Blair Co., 232 Pa. 511, 81 Atl. 556; Papilios v. Best Mfg. Co., 58 Pa. Super. Ct. 70. And see Thorson v. Carnegie Steel Co., 238 Pa. 166, 85 Atl. 1114; Powell v. S. Morgan Smith Co., 237 Pa. 272, 85 Atl. 416. While the evidence was conflicting, it sustains a finding of defendant's negligence, although the jury, might have found the facts otherwise. The contractor's men were known to be working about the girder from time to time, and, in Even if the business manager was the head view of this fact, the failure of the crane of a department, there is no authority in law operator to glance in that direction while authorizing the appointment of a deputy manmoving alone the track, or to give any warn-ager to act generally for his principal, which ing, were circumstances for the jury to con- is the only statutory reason for placing a depsider on the question of his neglect. uty in the unclassified service. 2. Municipal corporations 211-There is no authority for appointment of deputy manager to act generally for his principal. Commission of New Jersey. On rule to show Commission of New Jersey. On rule to show cause why a mandamus should not issue. Rule discharged. Argued November term, 1921, before TRENCHARD, BERGEN, and MINTURN, JJ. [3] The noise of the factory and of the Petition by Lincoln A. Virtue, relator, for work upon the new building naturally pre-writ of mandamus against the Civil Service vented plaintiff from hearing the approach of the crane, as his stooped position, while driving in the post, prevented him from seeing it. He was bound to be vigilant for his own safety; yet, in view of the promise of protection and its fulfillment theretofore, his presence on the girder, in the performance of his work, cannot convict him of contributory negligence as a legal conclusion. Whether, under the circumstances plaintiff exercised due care for his own safety was a question of fact (Van Zandt v. Phila. B. & W. R. R. Co., 248 Pa. 276, 93 Atl. 1010), as was the question of the necessity of his standing on the girder while doing his work. The cases of Lowry v. Baldwin L. Works, 253 Pa. 87, Spaulding Frazer, of Newark, for relator. Thomas F. McCran, Atty. Gen., for respondents. BERGEN, J. The relator holds a rule to show cause why a writ of mandamus should not issue to compel the respondent to certify for payment the salary of relator as deputy assistant of the business manager (116 A.) of the Newark school district; the respond- [ the number and salaries of such clerks shall ents claiming that relator is a person with- be determined by the board of education. in the classified service of the state and sub- Section 72 provides that all plans for the ject to the civil service examination required improvement of schoolhouses shall be drawn by law. The relator refuses to take the ex- under the supervision of the business manaamination on the ground that he should be ger, but shall be approved by the board of placed by respondents within the classified education; that he shall supervise the conor exempt class, and therefore not required struction of the school buildings and shall to submit to such examination. A former report monthly the condition of the work Attorney General was of opinion that the to the board; and that repairs which do not business manager was the head of a depart- exceed $100 may be ordered by the business ment and entitled to be placed in the un- manager, and repairs not exceeding $500 classified service, and that advice was com- by the committee of the board having charge plied with. The present Attorney General of the repairs; that the business manager questions that ruling and now submits the shall superintend all advertisements for bids question whether the business manager is and the letting of contracts, shall inspect entitled to be so classified, and urges that all work done or materials furnished, and he is not entitled to exemption and, if not, shall, "subject to the approval of the board the relator, as his deputy, has no such right. of education, condemn any work and reject The Civil Service Act 1918, p. 244, pro- any material which, in his judgvides that the unclassified service shall in- ment, do not conform to the specifications." clude "all superintendents of, teachers and It may be that under this statute the busiinstructors in, the public schools, ness manager holds an office, but in our judgment it is not the head of a department; certainly he is not a principal executive officer, any more than the secretary would be whose employment was provided for by the county superintendents and members of all boards of education," and that the classified service shall include all persons in the paid service of the state or the municipalities thereof that may adopt the act. Newark same section. He is nothing more than an has adopted the act. Therefore in dealing with school employees a business manager was not expressly included in the unclassified service, and unless he is a head of a department is not entitled to be placed in the unclassified service. In 1914 (P. L. 82), the thirteenth section of the Civil Service Act was amended to include in the exempt class "the deputy or first assistant of principal executive officers authorized by law to act generally for and in the place of his principal." So, if the business manager is not a principal executive officer, his deputy is not exempt. employee who by this statute may be discharged by the board of education at any time by a majority vote. The statute does define certain things he may do, most of them not without the approval of the board, and his duties are merely administrative, and as, under the law, the relator is not a deputy or first assistant of a principal executive officer, authorized to act generally in the place of his principal, he is not entitled to be placed in the exempt class, because he is not a person described in the statute as entitled to exemption. But if we assume that the business manager is a principal ex[1, 2] The power of the board of educa- ecutive officer, there was no authority in law tion to appoint a business manager is found for the appointment of a deputy manager to in the fiftieth section of the School Law (C. act generally for the principal. The board S. p. 4718), which provides that the board of education, by resolution, perhaps, undershall have the supervision, control, and took to confer that power, but they have no management of the public schools and pub- statutory authority to do so, and their powlic school property; that it shall appoint a er is limited to that conferred by the Legperson to be its secretary, and may ap- lature. The only power conferred on the point a business manager and other officers, business manager is to employ clerks, and agents, and employees as may be needed, there is no statutory authority authorizing and fix their compensation and terms of em- such business manager to delegate to one of ployment, but that no such appointee, other his clerks the power to perform all his duthan the secretary, shall be a member of the ties. If it was otherwise, the board of eduboard. Section 70 provides that whenever a cation might denominate all their clerks or business manager shall be appointed he shall deputies to perform duties which the board receive such salary as the board shall de- of education should perform, and thereby termine, and may, by majority vote of all nullify the Civil Service Law. We think the members of the board, be removed from the board of education is the head of the office; he shall have a seat in the board, and educational department of Newark, and that the right to speak, but shall not have a vote. the business manager, secretary, and all othSection 71 provides that the business man- er employees, not expressly exempted by the ager shall have charge and care of the pub- statute, are subject to be placed in the claslic school buildings, and all other property sified service. It should be borne in mind belonging to the school district, and may that, when the act was amended in 1918 (P. appoint and remove clerks in his office, but L. 244), the office or employment of a busi of New Jersey. The injury occurred on November 2, 1920, at Mt. Vernon and Centre streets in the borough of Shenandoah, county of Schuylkill, in the state of Pennsylvania. ness manager had been previously provided properly within the jurisdiction of the courts for by the Legislature, and it was very careful, in fixing the exempt classification as to educational officers, not to include the business manager, and certainly it did not include a deputy, except as prescribed in section 13, that is, a deputy of a principal executive officer, and in our opinion the business manager is not a principal executive officer, and therefore the relator is not entitled to be placed in the unclassified service for that reason. The summons and complaint were served upon the defendant by the sheriff of Mercer county in Trenton, N. J. The venue is laid in Mercer county, the defendant company having made the necessary filings required by the state's laws to qualify it to The rule to show cause should be dis- do business in New Jersey as a foreign railcharged. (97 N. J. Law, 100) road corporation. [1] The basis of the motion is: To entertain such an action is contrary to the public policy of the state of New Jersey. This pre METCUFSKIE v. PHILADELPHIA & R. RY. cise question does not seem to have been de CO. (Supreme Court of New Jersey. Feb. 23, 1922.) (Syllabus by the Court.) 1. Courts 14-Nonresident may sue foreign railroad authorized to do business in the state for injuries through negligence in another state. A suit to recover damages for personal injuries to the plaintiff, a nonresident of the state, which were caused by the alleged negligence of the defendant company in the state of Pennsylvania, may be maintained in the courts of New Jersey, against a foreign railroad company, authorized to do business and operate in New Jersey. 2. Venue 4-Nonresident's personal injury action against foreign railroad for injuries in another state may be brought in county in, which railroad is served with process. Such an action is transitory, and the venue may be laid in the county in which the defendant was served with process. Action by Thomas Metcufskie, an infant, by next friend, against the Philadelphia & Reading Railway Company. On motion to strike out complaint. Motion denied. Argued November term, 1921, before SWAYZE, BLACK, and KATZENBACH, JJ. John Winans, of New York City, for plaintiffs. cided in our appellate courts in any reported decision. The case of Camden Rolling Mill Co. v. Swede Iron Co., 32 N. J. Law, 15, is not in point; on the other hand, in those cases which were brought in this state to recover damages for the destruction of property, growing out of the great fire in the city of New York in 1835, reported as the American Print Works v. Lawrence, 21 N. J. Law, 248, and Hale v. Lawrence, 21 N. J. Law, 714, at page 727 (47 Am. Dec. 190), it was said: "While the courts of New Jersey will abstain from jurisdiction, where it is not clearly conferred by law, and whilst they will extend all proper courtesy to foreign courts and their decisions, they will not feel themselves at liberty to deny process and jurisdiction merely from considerations of courtesy to such courts, or from motives of convenience to themselves or suitors." [2] Section 202 of the Practice Act, 3 Comp. Sts. of N. J. p. 4113, P. L. 1903, p. 590, relative to venue, while not intending to confer or to limit the jurisdiction of our courts, yet it operates as a recognition of the existence of such jurisdiction in actions merely transitory. In the case of Ackerson v. Erie Ry. Co., 31 N. J. Law, 309, it was held an action will lie in New Jersey for a tort to the person committed in another state. "Personal injuries are of a transitory nature and sequunter forum rei." In that case, the John F. Reger, of Somerville, for defend- plaintiff was a passenger in one of the cars ant. BLACK, J. An application was made in this case to strike out the plaintiff's complaint. The reasons stated for the application in the notice to strike out are these: Because the plaintiffs are nonresidents of New Jersey, the defendant is a foreign corporation, the cause of action set out in the complaint is to recover damages for personal injuries based on the alleged negligence of the defendant, which arose outside of the state of New Jersey, and is therefore not of the defendant company which through its negligence suffered the car to run off the track at Ballacoon in the state of New York, injuring the plaintiff. The report of the case is silent as to the residence of the plaintiff. The decision, however, is placed squarely on the nature of the action, viz., that it is a transitory action, as distinguished from a local action. A "local action" is one brought to recover the seizin or possession of lands, which are local subjects. That case was cited with approval by the Court of Errors and Appeals in the case of Fortein v. Dela (116 A.) ware, etc., R. R. Co., 90 N. J. Law, 137, 141, 100 Atl. 194. This whole subject seems to be exhaustively treated in 15 Corpus Juris, p. 738, pars. 37-40. There, a wealth of citations is made from many courts. It is stated a right of action which has accrued in one state will be enforced in the courts of another, unless prohibited by law, or unless such enforcement will transgress some policy of the state in which the action is brought. The motion to strike the complaint should be denied, with costs. A rule to that effect may be entered. of Camden, in an automobile, in the nighttime, as he reached a point in the street where the tracks of the Public Service Railway Company cross the tracks of the West Jersey & Seashore Railroad Company, drove into a deep excavation, with the result that he sustained permanent injuries. The specific charge of negligence laid against the defendants was failure on their part to use reasonable care to properly guard the excavation in order to protect the traveling public using the street at night against the danger which existed at that crossing, by displaying proper and adequate warning signals of the danger. The plaintiff brought his action in the Camden county court of common pleas, BRAY V. WEST JERSEY & S. S. R. Co. which resulted in a verdict for the plain et al. Where railroads caused an excavation to be made in a public highway, the law cast upon them the duty to use care commensurate with the danger by providing reasonably proper and adequate safeguards or warning signals, and whether they had used such care was a question for the jury. 2. Railroads 350 (15)-Contributory negligence of automobile driver falling into excavation held for jury. Where railroads had made an excavation in a street and had placed lanterns on the piles a street and had placed lanterns on the piles of dirt on each side, but no lantern or other barricade in front of the excavation itself, and the street had not been closed to traffic, it was a question for the jury whether an automobile driver was contributorily negligent in attempting, on a dark, rainy night, to drive between the two rows of lanterns and so falling into the excavation. tiff and against both defendants, for the sum of $40,000. On defendants' rule to show cause, exceptions being reserved, why the verdict should not be set aside for the cessive, the court below gave the plaintiff reason that the damages awarded were exthe option of accepting $12,000 or the rule would be made absolute. The plaintiff acquiesced in a reduction of the verdict to the sum of $12,000, and judgment was entered thereon, from which judgment the defendants appeal. The record shows six grounds of appeal, but in the brief of counsel of defendants they make this statement: "The argument will be confined to grounds Nos. 2 and 3 relating to the refusal of the court to direct verdicts in favor of the defendants. Grounds Nos. 1, 4, 5 and 6 are aban doned." Grounds Nos. 2 and 3 are based upon a denial by the court below of a motion for a direction of a verdict for defendants, the insistence being that there was a lack of proof that the defendants were guilty of any negligence, and even that, if there was Appeal from Court of Common Pleas, not such failure of proof, the plaintiff himCamden County. Action by Walter S. Bray against the West Jersey & Seashore Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed. Argued June term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ. Bourgeois & Coulomb, of Atlantic City, for appellant West Jersey & S. S. R. Co. Lefferts S. Hoffman, Leonard J. Tynan, and Joseph Coult, all of Newark, for appellant Public Service Ry. Co. William C. French and Samuel T. French, both of Camden, for respondent. PER CURIAM. The plaintiff, a physician. while driving along a public street in the city self was guilty of negligence contributing to his injury. [1] The defendants in causing the excavation to be made in the public highway created a place of danger to public travel, vehicular and on foot, and therefore the law cast upon them the duty to use that degree of care commensurate with the danger created by providing reasonably, proper, and adequate safeguards or warning signals to protect and warn the public against and of the existing danger. Hence it becomes readily perceivable that the question whether the defendants used reasonable care to provide proper safeguards or adequate signals of warning to protect and warn the public necessarily gave rise to a question of fact, the determination of which was for a jury. Now, that being so, it appearing that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (97 N. J. Law, 52) V. CITY OF NEWARK. there was a prima facie case of negligence for the consideration of a jury, unless it BOARD OF TRADE OF CITY OF NEWARK conclusively appeared that plaintiff was guilty of negligent conduct contributing to his injury, the motion to direct a verdict was properly denied. [2] According to the plaintiff's testimony, he was driving his motor car along the public street on a dark, rainy, and drizzly night; he saw, as he approached the crossing, piles of dirt on which there were red lights, and he tried to go to the right and found that he did not have room, so far as he could see; he then tried to turn to go to the left and did not succeed, and seeing a place which was clear he drove his car, to the only place that he saw was clear, which place was between rows of red lights, there being no lights barring his progress in the path he was taking, and which appeared to him was clear but proved to be otherwise, for his motor car went into an excavation in the path which excavation was unobservable by him. The plaintiff, on his cross-examination, admitted that he had passed the excavation earlier in the day, but saw the workmen at work there, and that he took it for granted that it had been filled in, due to the position of the red lighted lanterns at the time of the accident. These red lights were on the top of the dirt piles, but all the testimony is in accord that there were no lights of any kind to indicate that the pathway that the plaintiff took was in a dangerous condition. (Supreme Court of New Jersey. Feb. 21, 1922.) (Syllabus by the Court.) 1. Municipal corporations 279- Provision for referendum on purchase of gas, electric, and steam plant requires submission of a distinct proposition for vote of "Yes" or "No." Where a statute authorizes a municipality to require a referendum vote on the question whether it shall acquire, within or without the city, a plant for the manufacture of gas, electricity, and steam for supplying light, heat, and power, or two or all, and that the city may by resolution require such a referendum according to which the ballots must be prepared, the resolution must definitely state the character of the plant necessary, and clearly indicate the purpose of the referendum, so that a distinct proposition is presented on which the voter may vote "Yes" or "No." 2. Municipal corporations 279-Referendum resolution on acquiring of plant must be such that the voter can answer "Yes" or "No." A resolution which requires a referendum whether the city shall acquire a plant to manufacture gas, electricity, or steam, or two or all, does not set out any distinct proposition to the voter as required by the statute. Whether the plant shall be within or without the city or whether the lighting shall be by gas or electricity are, under the statute, distinct propositions when the only answer the voter is allowed to give is by voting "Yes" or "No." to review a resolution of the City Commissioners. Resolution set aside. Argued November term, 1921, before Jerome T. Congleton It was for the jury to determine whether or not an ordinary prudent man would have taken the course the plaintiff took, that is, drive his automobile along a path which did Certiorari by the Board of Trade of the not display a red light-the signal of danger. | City of Newark against the City of Newark There was also testimony in the case that earlier in the evening of the day of the accident, there was a man stationed by the defendants at the spot where the excavation was with a lighted red lantern in hand to give warning, which at least indicated that this precaution was thought to be necessary by the defendants to protect the public against the danger at the crossing. The man with the lantern was not there at the time BERGEN, J. [1] This writ of certiorari the plaintiff met with his injuries. The fact assails the validity of a resolution of the that the street was not barred to the use of commissioners of the city of Newark requirthe public for vehicular traffic at that point ing the submission to a referendum vote of has a material bearing on the question as a question relating to the acquisition or conto whether or not it could be said, as a mat-struction by the city of a plant for supplying ter of law, that the plaintiff's attempt to light, heat, and power for public and private cross at the crossing was negligence. We use, resting upon the authority of article 33 think that fact, together with the circum- of the act of 1917 entitled "An act concernstances, such as the absence of any red lighting municipalities" (P. L. 319). The first parsignaling danger in the pathway, the position of the red lights on the piles of dirt, etc., presented a jury question, and therefore the court could not have properly directed a verdict for defendants on the ground of contrib-it as may be necessary for the manufacture utory negligence. Judgment is affirmed, with costs. agraph of the article provides that any municipality may purchase, condemn, take, hold, and enjoy in its name such real and personal property within or without its corporate lim and distribution of gas, electricity, steam, or other products (or all) for supplying light. |