Collins v. Central Railroad

101 A. 287, 90 N.J.L. 593, 5 Gummere 593, 1917 N.J. LEXIS 366

Opinion

The opinion of the court was delivered by

Bergen, J.

The plaintiff was lawfully in the freight station of defendant at Newark, N. J., for the purpose of moving some hags of manure. After he had taken one and was returning for another, an iron radiator fell on him and inflicted injuries for which he brings this action.

It is not necessary to determine whether any negligence of defendant was shown, because this judgment must be reversed for error in the charge of the court, which was as follows: “T f the defendant company had, at any time before the accident, either knowledge or notice of a dangerous condition of its premises it would have been negligence on the part of the company not to have remedied this condition.” “At any time before tlie accident” includes immediately before, and under our eases defendant was entitled to a reasonable time within which to inspect, discover and repair the defective condition if it existed. Schnatterer v. Bamberger & Co., 81 N. J. L. 558. All that is required is reasonable care and ordinary prudence. Ruane v. Erie Railroad Co., 83 Id. 423.

The fact that the court subsequently charged the correct rule, if he did as is claimed, does not cure the trouble, for as Mr. Justice Parker said in State v. Tapack, 78 N. J. L. 208, “The rule is well settled that an erroneous instruction, followed or accompanied by a correct one is not cured by the latter unless it is also expressly withdrawn, as the jury is left at liberty to adopt either.”

The judgment is reversed.

For affirmance—None.

For reversal—Tiie Chancellor, Garrison, Swayze, Trenciiard, Bergen, Minturn, Kaliscii, Black, White, HEPRENHEIMER, WILLIAMS, TAYLOR, GARDNER, JJ. 13.