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S.J. & H. R. Ry. ('0. li Am. Elec. Works.

81 V.J.L.

NEW JERSEY AND HUDSON RIVER RAILWAY AND FERRY

COMPANY ". AMERICAX ELECTRICAL WORKS.

Submitted December 1, 1910_Decided January 14, 1911.

O

In the interest of justice and in a proper case a party whose statu

tory proceeding cannot be formally amended may be permitted to give to the other party, by a stipulation filed in the cause, the protection that such amendment, if it could be made, would afford.

On certiorari and a motion.

Before Justices GARRISON, SWAYZE and VOORHEES.

For the prosecutor, Wendell J. Wright.

For the defendant, JcCarter & English.

The opinion of the court was delivered by

GARRISON, J. The petition, under which commissioners were appointed by the Circuit Court to appraise the full market value of the petitioner's stock in the corporation of the prosecutor, bears internal evidence of having been drawn and exhibited under the twenty-third section of the Traction act of 1893 (Pamph. L., p. 302); the order that was made strictly follows the petition. The fault ascribed to each is that certain of the duties to be performed by the commissioners, under this section, are stated in general terms rather than with that particularity which the prosecutor deems to be essential to its protection. The petitioner (the defendant in certiorari) moves for an opportunity to amend in these particulars the proceeding in the Circuit Court, but has not directed our attention to any statute, or satisfied us of any existing practice, under which such an amendment can be made..

The situation therefore is that the prosecutor seeks for a certain protection that the present proceeding does not afford

5. I room.

V. J. & II. R. Ry. ('0. V. Am. Elec. Works.

to it which the defendant is willing to afford if the rules of practice will permit. It would be very unfortunate, under these circumstances, if the only alternative were the dismissal of the proceeding or its retention in its present form. We think that the defendant may, if it will, do, in effect, what the protection of the petitioner requires, without involving the power of the Circuit Court to amend this statutory proceeding. In the interest of justice, such a course should be followed rather than one that is destructive, or at best wasteful, of the substantial interests of one or the other of the parties before the court.

If the defendant will, within twenty days, pay the costs of the prosecutor and file in the cause and serve upon the attorney of the prosecutor a stipulation that its petition and the order of the Circuit Court obtained upon it and all proceedings had or to be had thereunder shall be conclusively taken as based upon the twenty-third section of chapter 172 of the laws of 1893, and shall be treated to every intent as if said petition and order embodied with particularity the pertinent provisions of that act, the order of the Bergen Circuit Court will be affirmed within ten days thereafter unless during such time the attorney of the prosecutor shall give notice to opposing counsel and to this court of some objection to the form of such stipulation, in which case the matter wil! be disposed of upon the hearing on such objection. In default of the filing of such stipulation, the prosecutor may give notice of a motion for a rule for judgment in certiorari.

The motion of the defendant is denied, with costs.

l'erkins v. Trenton St. Ry. Co.

81 N.J.L.

C. WINFIELD PERKINS. APPELLANT, v. TRENTON STREET

RAILWAY COMPANY, APPELLEE.

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

a

A printed rule of the trolley company required the conductor

car in case an accident should occur to take the injured person to a physician. The motorman having met with an accident by which his leg was crushed, the conductor telephoned to the plaintiff, a physician, who came and amputated the limb. Held. that the company was liable on contract to the physician for the value of the service thus rendered.

On appeal from the District Court of Trenton.

This action was brought by Doctor Perkins against the Trenton Street Railway Company to recover for services rendered for the company to Charles Brown, a motorman in the en ploy of the company, at the request of the conductor.

The motorman and conductor, respectively, left Trenton with a car of the company for Princeton. At or near Stony Brook, a flock of guinea hens ran across the track, and the motorman, with one hand on the air-brake lever, leaned out of the car to observe if any of the fowls had got in the running gear of the car, when he was knocked off the car, and the wheels of the car, passing over his left leg, crushed it between the knee and thigh. The conductor ran the car as fast as he could to Princeton where he telephoned for a physician, and shortly afterwards Doctor Perkins arrived and administered to the injured man, tourniqueting the wounded leg and applying restoratives. The car was run as fast as possible to McKinley Hospital, Trenton, as Doctor Perkins considered it necessary to get the man there to amputate his leg as quickly as possible. Doctor Perkins amputated the leg as soon as he arrived at the hospital,

The conductor testified that he was the highest one in authority at the scene of the accident, and in Princeton at the time he requested Doctor Perkins to attend to the motorman.

52 Vroom.

l'erkins v. Trenton St. Ry. Co.

Doctor Perkins testified that the condition of the man was such from shock and loss of blood that it was absolutely necessary to operate to save the man's life.

Doctor Fell, after being qualified as an expert, testified that from the condition of the man, as testified to, he would say that it was necessary to amputate to save the man's life.

A book of instructions, issued by the Trenton Street Railway Company to its motormen and conductors when they were first employed by them, entitled “Instructions as to the Handling of the Electric Cars," was offered in evidence to show the agency of the conductor, which book was placed in evidence after objection of counsel for the railway company. The clauses in book of instructions referred to read as follows:

“5. The conductor will have full charge of the car while on duty, and such orders that he may give, not conflicting with the rules, are to be obeyed.

“6. In case an accident should occur, the car must be stopped immediately, and the conductor ascertain the name and residence of injured person, render all possible assistance. and, if necessary, take the injured person to a nearby drug store or physician. In case an accident is serious, telephone immediately to the main office of the company; ascertain the name and residence of all persons who witnessed the accident, which is of the utmost importance.” * * *

The conductor testified that he requested Doctor Perkins to attend the wounded man and telephoned the main office of the company in Trenton.

Counsel for the defendant asked for judgment in favor of defendant upon the grounds that there was not shown any legal liability upon the part of the defendant, also that the motorman, by his own carelessness, caused the injury he received.

Judgment for defendant of no cause of action.

Before Justices GARRISON, Swayze and VOORHEES.

For the appellant, John V. B. Iicoff.

Perkins r. Trenton St. Ry, ('o.

81 N.J. L.

For the appellee, George W. Jacpherson.

The opinion of the court was delivered by

GARRISON, J. The District Court, in an opinion filed in the cause, places its decision solely upon the ground that the emergency did not constitute the conductor the agent of the company. The soundness of this conclusion need not be eramined since it entirely ignores the printed “instructions" issued by the company touching the duties of the conductor in case an accident should occur. In such a case the conductor, in addition to rendering all the assistance it is possible for him to render is required, when the necessity for it exists, to take the injured person to a physician. This is meaningless unless it means that the physician is to render the professional aid immediately necessitated by the accident. We think that this is its meaning, and that services of such a character when so rendered are rendered to the company through its duly-authorized agent. The authority to take the injured person to the physician, of course, carries the anthority to call the physician to the injured person. Thus far there is no difficulty.

The District Court, however, in its opinion, finds not only that there was no suificient emergency (a matter we need not now consider), but also that the injured motorman was himself guilty of negligence. Assuming that this means that his negligence was such as to bar his right of recovery against the company, the question arises whether the authority of the conductor unler the printed instructions extends to cases of accidents for which the company is not liable. The instruction makes no such distinction, and upon reflection, we think that no such distinction can be made in view of the ground upon which the instruction itself must be supported as a reasonable and valid exercise of corporate regulation. The directors of the company will be presumed to have framed and promulgated this instruction in the interest of the stockholders. From this point of view they may well have considered that for every injury resulting from an accident in their cars a law suit is possible, in the course of which their liability would

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