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52 l'room.

Goessel v. Central R. R. of N. J.

Contra, William C. Gebhardt.

· The opinion of the court was delivered by

GARRISON, J. It was not necessary for the plaintiff to show that the construction of the defendant's machine shop was per se negligent with reference to the work the plaintiff was set to do therein, viz., to wipe a locomotive that was to be moved through the doorway while plaintiff was at work. Although the space between the outside of the cab and the side wall of the doorway was only five inches, a person whose work required him to lean outside the cab would have been adequately safeguarded by an appropriate warning. The situation therefore was such that the defendant would have been in the exercise of reasonable care with respect to the plaintiff if it either refrained from running the locomotive through the narrow aperture while the plaintiff was wiping the cab, or if when so running it it gave him due warning thereof. It was for the defendant to decide which of these methods of safeguarding the plaintiff it would adopt; it was a question of the exercise of reasonable care whether it could omit both. In fine, if the duty that the defendant owed to its servant, and it clearly owed some, was in the alternative so that neither mode of its performance was imperative upon the defendant, still this did not conclusively absolve the defendant from the performance of both. The court properly declined to control the verdict upon this ground.

The claim of contributory negligence, with which the plaintiff's assumption of obvious risk is somewhat confounded in the argument, is based upon considerations that ascribe to the plaintiff a duty of being constantly on the lookout for his own safety that is inconsistent with the efficient performance of the manual labor he was set to do. A servant may reasonably be required to acquaint himself with the appliances with which he is to work, and is properly chargeable with knowledge of the dangers incident to their use; this presumption, however, cannot be extended to all parts of the master's service or to a general supervision of his business methods without an entire destruction of the efficiency of

Goessel v. Central R. R. of N. J.

81 N. J.L.

labor and of the relation of master and servant. We are in danger, in dealing with this relation, of laying down theoretical propositions of law that in their application may leave entirely out of sight the actual facts upon which that relation is based and the practical effects that are required to grow out of it. As a naked legal proposition it may be said that a servant must use all reasonable means for his own safety while at his master's work, but if this be held to mean that he is to devote any considerable portion of his time to an investigation of his master's business methods outside of the work he is set to do, or that he may devote a still greater portion of his time to looking out for dangers that may possibly result to him from the work that other servants have been set to do, such proposition would be of no practical use in determining the relation of master and servant for the simple reason that such relation would itself be terminated by the master the moment he realized that he was paying a servant not to work for him but to criticise the methods by which others were doing their work and to keep a constant lookout for possible dangers that might come to him from such outside sources.

In aid, therefore, of both master and servant, the presumption in favor of the latter is against the negligence of the former; so that the servant is not, as matter of law, required to neglect his own duty in order to assure himself that the master is performing his. An apt illustration is Daum v. North Jersey Street Railway Co., 40 V room 1, where the court refused to ascribe contributory negligence to a workman in a trench near to the trolley track because of his failure to look for an approaching car that struck him. “Although,” said Chief Justice Gummere, "he was bound to use reasonable care for his own safety, this did not require him to look continuously for the approach of a car. To have done this would have made it impossible for him to perform his work.”

The case of Young v. Delaware, Lackawanna and Western Railroad Co., 39 Vroom 603, is quite directly in point.

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We think that in view of the uncontradicted testimony, and the presumptions to which the plaintiff was entitled, the court would have erred in taking from the jury the decision of the questions raised by the motions for a nonsuit and the direction of a verdict.

The damages under the testimony are not excessive.
The rule to show cause is discharged.

CARRIE L. HARRISON v. THE BOROUGH OF MADISON.

Submitted December 1, 1910—Decided January 6, 1911.

The act of the president of a borough council in approving a public

ordinance during an interim in the office of mayor is that of a de facto officer, affecting the public, that upon principles of public policy will be held to be valid regardless of his de jure rights derived from the Borough act.

On certiorari.

Before Justices GARRISON, SWAYZE and VOORITEES..

For the prosecutor, Sommer, Colby & Whiting.

For the defendant, Charles A. Rathbun.

The opinion of the court was delivered by

GARRISON, J. This certiorari attacks an ordinance providing for the construction of sidewalks in the borough of Madison, passed by the requisite majority of the borough council and approved by George W. Downs, “President of the Council, Acting Mayor.”

The ground of attack is that Downs was not "Acting Mayor," and the basis of this contention is the fact that the office of mayor was vacant owing to the death of the duly

elected mayor.

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Section 25 of the Borough act (Pamph. L. 1897, p. 285) provides as follows: “In case of the Mayor's absence from the Borough for a period of three days, or in case of his inability to act by reason of sickness or other cause, the President of the Council shall perform all the duties of the Mayor during such absence or inability."

It is contended, and the argument is legitimate if stress is to be laid upon the nice use of words, that this section contemplates a mayor in being capable of absenting himself and liable to sickness and to inability from causes affecting his performance of duties he otherwise would perform.

The mischief, however, at which the section was aimed, was the lapse of an official function, and in this view the remedy is none the less called for because the absence is from its nature permanent and the consequent inability unending.

The interpretation of the section is not free from difficulty, but I incline to take the broader view which results in sustaining the approval as valid under the statute.

There is, however, a yet broader view by which the same result is attained, viz., that Downs whether or not legally justified by statute was in fact performing the duties of the office of mayor of the borough in respect to matters in which the public was interested and to the knowledge and with concurrence of the council. He was, therefore, one whose acts, though upon this assumption not those of a lawful officer, the law, upon principles of public policy, will hold to be valid unless done without color of right or authority. In the present case, the statute we have attempted to interpret gives some show of authority for the acts of Downs and the requirement of the Borough act (Pamph. L. 1897, p. 286) that all vacancies shall be filled by appointment until the next election gives some color to his exercise of the duties of the office, since the council, whose duty it was to fill the office, may be presumed to have so filled it by concurrence in its being so filled.

The name by which Downs called his office, or by which it was known to the public, if at all significant, is not conclusive. He may not fall within the precise definition

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hitherto given of a de facto officer, but the underlying principle is similar, and the public policy to be regarded and conserved is the same. This underlying principle, illustrated by all of our "de factocases, and notably expounded by Chief Justice Gummere in Lang v. Bayonne, 45 Vroom 455, requires, in my judgment, that the act of Downs in approving the public ordinance now before us be held to be valid upon grounds of public policy and immune from attacks that might be unanswerable if the de jure title to an office were the issue.

The ordinance is affirmed.

HETTIE A. HOPKINS ET AL. v. LENA I. LYON, PROSECUTOR.

Argued November 1. 1910-Decided March 7, 1911.

The jurisdiction of the justice of the peace under the Landlord and

Tenant act is not superseded under the amendment to that act approved April 8th, 1910 (Pamph. L., p. 233), until there has been established within the county in which the premises are situated a District Court qualified to exercise the jurisdiction of which such justices are to be deprived; such a court is not so established as long as the person appointed to be its first judge has not taken the oath of office which is essential to the exercise by such court of its judicial functions.

On certiorari.

Before Justices GARRISON, SWAYZE and VOORIIEES.

For the prosecutor, Vreeland, King, Wilson & Lindabury.

For the defendants, Joshua R. Salmon and Willard W. Cutler.

The opinion of the court was delivered by

GARRISON, J. This writ brings up the proceedings had before a justice of the peace under the Landlord and Tenant

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