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72 Vroom.

l'erkins v. Trenton St. Ry. (o.

for the first time he authoritatively determined. If liable they may be deemed, from their knowledge of human nature, to know that the damages assessed by the jury would, as a rule, be largely enhanced by any show of inhumanity toward the plaintiff at the time of his injury or any lack of immediate care for him at that critical juncture, and also that humane aid promptly secured by the company would be a circumstance likely to affect the jury favorably. The directors also knew, unless blind to the details of their business, that it is of the utmost importance in litigated accident cases that the medical witness, who first sees and ministers to the injured person, shall not be one selected and paid (or to be paid after the suit) by such person, and still more that such witness shall not be selected by the attorney who prosecutes the suit for damages. A rule that would in all cases tend to secure unbiased testimony upon this important feature of every such litigation would be an exercise of sound discretion by the directors. This answers the objection that it is no part of the directors' duty to provide medical attendance for persons for whose injuries the company is not liable. For such liability cannot be determined at the instant of the accident, and that is the instant at which the conductor is required to act. So, that in view of the reason suggested for such rule, it would be a sound exercise of discretion for the directors to incur the slight expense in those cases in which it was ultimately determined that the company was not liable in view of the far greater importance of the results flowing from such rule in cases where the question of damages was involved.. For the same reason and to the same end the rule should not be interpreted or rather frustrated by making the conductor pass as judge and jury upon the law and facts of an accident at the instant of its occurrence as the basis of his private judgment as to whether or not it came within the rule that prescribed his duties in case of an accident.

Regarding the case therefore as one in which the injured person was guilty of contributory negligence, we think that that circumstance affects neither the interpretation of the company's rule nor its legal effect upon the agency of the con

Rogers v. Pennsylvania R. R. Co.

81 N. J. L.

ductor. We may say, however, in conclusion, that the existence of contributory negligence, if determined by the court as a judge, was not justified by legal rules, and if found by the court as a jury was not supported by any testimony.

The sole circumstance upon which in either case such finding could rest, is that the motorman had leaned beyond the outer wall of the car in order to see whether a flock of guinea hens had got into the running gear of the car. To make observations as to occurrences of this sort that might delay travel and even endanger the safety of passengers, was strictly within the line of the motorman's duty, and there is - not a scintilla of testimony in the state of the case to suggest that such duty could have been performed in any other way than as this servant performed it, or that he performed it in a negligent manner: Had he failed to look back, and in consequence of such failure been injured by the fowls becoming engaged in ihe running gear, such failure would, with much more show of reason, have been ascribed to him as a failure to perform his duty. It cannot be that he was equally negligent whether he looked or failed to look, and of the two we think that his failure to look would, if one or the other must be negligence, have been the negligent act.

The judgment of the District Court of the city of Trenton is reversed and a venire de novo awarded.

CLARENCE ROGERS V. THE PENNSYLVANIA RAILROAD

COMPANY ET AL.

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

Under the supplement of April 14th, 1909, to "An act respecting writs

of error" (Pamph. L. 1909, p. 149), a writ of error issued on May 19th, 1909, to review a judgment in an action for personal injuries entered on May 24th, 1906. will be dismissed as not brought within the time allowed by the act of March 27th, 1874 (Gen. Stat., p. 1391), as amended by the act of May 15th, 1907 (Pamph. L., p. 133).

52 l'room.

Rogers v. Pennsylvania R. R. Co.

On motion to dismiss writs of error.

Before Justices GARRISON, SWAYZE and VOORHEES.

For the motion, Alan H. Strong.

Contra, Charles E. Cook and Aaron E. Johnston.

The opinion of the court was delivered by

GARRISON, J. This is a motion to dismiss two writs of error brought by Clarence Rogers to reverse a judgment entered against him in Monmouth Common Pleas, in an action brought by him against the railroad companies for personal injuries. The judgment was entered May 24th, 1906.

The first writ of error was issued December 20, 1907, and has never been returned. The second writ of error was issued May 19th, 1909, and was duly returned.

As to the first writ of error the motion to dismiss is on two grounds---first, because the same was not issued within the time required by law, and second, because the same was not returned within the time required by law.

This writ of error was barred by the supplement of May 15th, 1907, to the act respecting writs of error. Pamph. L. 1907, p. 453. It was issued more than six months after the act of 1907 took effect. The act of 1907, as applied to judgments recovered (as this one was) before its passage, allowed six months from the time the act took effect, for a writ of

error.

The provisions of this act are substantially the same as those of the supplement to the Chancery act, approved the same day, and limiting the time for appealing from final decrees. Pamph. L. 1907, p. 132. The latter act was construed and its validity established by the Court of Errors and Appeals in State Council v. National Council, Jr. 0. U. A. JI.,

The first writ therefore was clearly out of time.

The second writ was issued May 19th, 1909, returnable June 5tn, 1909, and duly returned.

Rogers v. Pennsylvania R. R. Co.

81 V.J.L.

This writ is sought to be sustained under the supplement of April 14th, 1909, to the act respecting writs of error. Pamph. L. 1909, p. 149.

The first section of the act of 1909 merely amends the supplement of 1907 by changing the time allowed for writs of error in actions affecting the possession or title of lands. The amendment simply changes the word “three" to "six,” where it is used to limit the number of months within which a writ of error may be taken in actions of that class. It does not in any way affect the time within which writs of error are to be taken in actions for personal injury.

The theory of the plaintiff in error is, that although his right to a writ of error was barred by the act of 1907, so that from November, 1907, when the period of six months allowed by that act expired, to April 14th, 1909, when the later act was approved, no writ of error could be issued, nerertheless the limitation was repealed and the right to the writ revived hy the second section of the act of 1909. That section reads as follows:

“2. This act shall take effect immediately, but shall not affect the right to a writ of error as it existed under the act to which this is a supplement, upon any judgment entered or obtained prior to the fourteenth day of May, in the year one thousand nine hundred and seven." Pamph. L. 1909, p. 119.

The answer to the position of the plaintiff in error is that the amendment of 1909 is not to be construed as if it were an entirely new statute.

In McLaughlin v. Verark, 28. l'room 298, 301, this court held that “By observing the constitutional form of amending a section of a statute, the legislature does not express an intention then to cnact the whole section as amended, but only an intention then to enact the change which is indicated. Any other rule of construction would surely introduce unexpected results and work great inconvenience.” This case affirmed in the Court of Errors and Appeals on the opinion of this couri. 29 l'room 202.

Bearing in mind, therefore, that the legislature by the act of 1909 did not chact the entire first section as a new pro

was

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vision, but only the change effected thereby, the second section is to be construed as if it read, "This change (allowing six months instead of three in actions to recover land) shall take effect immediately, but shall not affect the right to a writ of error as it existed under the act to which this is a supplement, upon judgment entered or obtained prior to the fourteenth day of May, nineteen hundred and seven."

The second section does not, in terms, amend the second section of the act of 1907. It is a section by itself, and when it says “this act." it means the act of 1909. Its effect, therefore, is to say that the change introduced by the act of 1909 shall not affect the right to a writ of error as it existed under the act of 1871. It does not assume to sar that the act of 1907 shall not affect the right to a writ of error under the said act of 1874, and under the act of 1874 as it stood after the amendment of 1907, the second writ of error was clearly out of time.

For the foregoing reasons, which are in effect those furnished to the court in the brief of counsel for the motion, both writs of error should be dismissed, with costs. The brief also advances and argues another ground which we deem it unnecessary to state in view of our conclusion upon the point · decided.

TIIE STATE, DEFENDANT IN CERTIORARI, V. ANGELO

DEMARCO ET AL.. PROSECUTORS.

Submitted March 23, 1911-Decided April 7, 1911.

The offence described in the first clause of section one of the supple

ment to the Crimes act (Pamph. L. 1910, p. 24), is not charged in an indictment that fails to make any mention of any such place as that stated and described in the statute.

On certiorari.

Before Justices GARRISON, PARKER and VOORHEES.

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