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52 Vroom.

Horn v. Hamburg-American Packet Co.

For the plaintiff in error, Smith & Brady.

For the defendant in error, William H. Morrow.

PER CURIAM.

The Supreme Court, on writ of error, affirmed the judgment of the Warren Circuit Court in an action brought to recover damages for the death of plaintiff's intestate, due to a collision caused, as alleged, by the negligence of the motorman in charge of a trolley car of the defendant. We agree with the Supreme Court that the question of the negligence of the motorman and the contributory negligence of plaintiff's intestate were properly submitted to the jury.

The judgment under review should be affirmed.

For affirmanceTHE CHANCELLOR, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, BOGERT, VREDENBURGH, CONGDON, SULLIVAN, JJ. 10.

For reversal-None.

BERNARD HORN, DEFENDANT IN ERROR, V. HAMBURGAMERICAN PACKET COMPANY, PLAINTIFF IN ERROR.

Argued March 20, 1911-Decided June 19, 1911.

On error to the Supreme Court, which had under review a judgment of the District Court of Hoboken, rendered in behalf of the plaintiff in an action of tort.

The following opinion was delivered in the Supreme Court by PARKER, J.:

The suit was for damages for personal injuries, and was tried by the court sitting without jury. The ground urged for

Horn v. Hamburg-American Packet Co.

81 X. J.L.

reversal is that there was no evidence on which a judgment for the plaintiff could be based, and that in consequence the court should have nonsuited or found for the defendant.

Horn was a journeyman painter in the employ of one Badenhausen, who had the general painting contract for all the defendant's steamships. As the steamer Auguste Victoria was at the Hoboken wharf, Horn and another man employed by Badenhausen were painting her side, standing on a raft for this purpose, when someone on the vessel threw a pailful of hot water over the taffrail, scalding Horn. The locality was that of the "steam kitchen," or kitchen for steerage passengers.

It is said that plaintiff was not there by invitation so as to throw any duty of care on defendant. But we think a prima facie case of invitation was sufficiently made out. Badenhausen, as it appears, had a general painting contract, and it was in the performance of that contract that plaintiff and his fellow were working on the raft. There is nothing to show that they were in the wrong place, as in the case of Daug v. North German Lloyd Steamship Co., 44 V room 770. Hence there was a duty of care resting on defendant and its servants on the steamer, to avoid injury to the painters by anything thrown over the side.

Appellant claims that there is no proof that the man that threw the water was a servant of defendant. But as the steamer was in dock and all her passengers were gone, the presumption would be that such person was a servant unless he was the employe of some other contractor. The evidence of Brotzer, the other man on the raft, that it "was a kitchen man," was struck out as a conclusion, but without destroying the inference arising from the testimony that he wore clothes like those of a kitchen man, and that he was dumping a pail of hot water from the part of the ship where the kitchen was situated. The captain, for the defence, swore that the rail was four feet high and solid, so that a man's clothes could not be seen; but this was a contradiction of evidence and raised a question of fact for the court, sitting as a jury, as to what the man's employment was.

The questions of negligence and contributory negligence in

5.2 Vroom.

Kuttner v. Central R. R. Co.

ourse

the were of

estions of fact and within the control of the trial judge sitting as a jury. If there was any evidence to support the plaintiff's claim, the judgment cannot be disturbed. Larin v. Public Service Railway Co., 48 Vroom 217. We think there was such evidence.

The judgment will be affirmed.

For the plaintiff in error, A. Leonard Brougham (of the New York bar) and August C. Streitwolf, Jr.

For the defendant in error, Weller & Lichtenstein.

PER CURIAM.

The judgment of the Supreme Court should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Parker in that court.

For affirmance_THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, CONGDON, SULLIVAN, JJ. 10.

For reversalNone.

FRANK KUTTNER, BY NEXT FRIEND, DEFENDANT IN

ERROR. V. CENTRAL RAILROAD COMPANY OF NEW
JERSEY, PLAINTIFF IN ERROR.

Argued March 22, 1911—Decided May 26, 1911.

On error to the Supreme Court, whose opinion is reported in 51 Vroom 11.

For the plaintiff in error, George M. Shipman, George Holmes and George H. Large.

Kuttner v. Central R. R. Co.

81 N.J.L.

For the defendant in error, William C. Gebhardt.

PER CURTAM.

The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by the Chief Justice in the Supreme Court.

For affirmanceTHE CHANCELLOR, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, BOGERT, CONGDON, SULLIVAN, JJ. 9.

For reversal-None.

INDEX.

the

ACTIONS.

|

AMENDMENTS.
1. An action will lie for the breach In the interest of justice and in a

of a warranty on a sale by the proper case a party whose statu-
defendant personally to

tory proceeding cannot be for-
plaintiff of a bond payable by a mally amended may be permitted
third party to the defendant as to give to the other party, by
trustee or to bearer. McCauley a stipulation filed in the cause,
v. Ridgewood Trust Co., 86 the protection that such amend-

ment, if it could be made, would
2. In order to maintain an action afford. N. J. & H. R. Ry. Co.
for breach of a contract of sale v. Am. Elec. Works,

34
the plaintiff must either show
that the terms and conditions of

See PLEADINGS, 2.
the sale were agreed upon by
the parties, or, in case they were
left for future determination,

APPEAL.
that the defendant has fraudu-
lently refused to agree upon any 1. Upon an appeal from the Dis-
terms and conditions whatever. trict Court this court will not
Ridgley v. Walker,

176 consider legal questions not pre-

sented by exception or otherwise
3. Where one suffers injuries to his contained in the state of the

person and also to his property case. Winfield v. Ludwig, 375
from the same negligent act of
the defendant, two distinct 2. Under the "Act to provide for
causes of action exist, and a re- and regulate appeals from any
covery for the injury to the prop-

District Court in any city of
erty is not a bar to a subsequent the state to the Supreme Court”.
action for the injury to the per- (Pamph. L 1902, p. 565), the
son.

Ochs v. Public Service appeal is confined to questions
Railway Co.,

661 of law; a reversal will not be

permitted upon a ground that
4. The cause of action is not the was not called to the attention

negligent act but the conse- of the trial judge, and something
quences following it, for to sup- in the nature of an objection or
port an action there must be not exception must appear from the
only the negligent act but a con- state of the case. Pratt V.
sequential injury ; the injury Union National Bank, 588
being the

gravamen of the
charge.
16. 3. The Supreme Court, upon

an

appeal taken from a District
See ATTORNEY AND CLIENT.

Court under Pamph, L. 1902, p.
BROKERS, 6.

565, having considered the meri-
CORPORATIONS, 4.

torious legal questions ised,
EXECUTORS AND ADMINISTRA- notwithstanding the state of the
TORS, 1.

case presented no question of
INSURANCE, 9.

law upon which the judgment
LANDLORD AND TENANT, 1, 6. of the District Court could prop-
NUISANCE.

erly be reviewed, and having
PLEADING, 11.

upon the merits affirmed the de-
SEDUCTION, 1.

cision of the District Court and
733

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