Opinion
Submitted October 26, 1929 —
Decided February 3, 1930.
It has been repeatedly held by our courts that an action can be maintained in this state, by a non-resident against a foreign corporation, for personal torts committed in another state, and as the action is transitory in its nature, the venue may be laid where service can be had.
On appeal from the Hudson County Circuit Court.
For the appellant, Wall, Haight, Carey Hartpence.
For the respondent, Frank M. Hardenbrook.
The plaintiff recovered a judgment in the Hudson County Circuit Court, against the defendant, for $7,500. Suit was instituted to recover damages for injuries sustained by the plaintiff, on September 17th, 1926, while performing his duties as a car barrer for the Susquehanna Colliers Company, at Lykens, Pennsylvania. His work consisted of moving coal cars, by applying an iron bar back of the wheels, and forcing the car along the track until it was in the proper position to be loaded from the breaker, after which the car would be moved, in the same manner, down the track to a point where it would be attached to a train. The track where the plaintiff was required to work was on property owned by his employer, and was known as the "loading track," and running along side of it was a track owned by the defendant railroad company, called the "empty track," which was used by the railroad company for the purpose of transferring its empty cars to a storage yard. On the day of the accident, there were seven or eight cars of the railroad company standing on the "empty track." The plaintiff had finished his work for the day, and was preparing to put away his tools, when he noticed a hatchet lying between the two tracks, and walked over to pick it up, so he could place it with the other tools. While doing so, the cars on the "empty track" started to move, and the over-hang of the nearest car struck the plaintiff, knocking him down, and bringing his right foot in such a position that it was caught between the wheel of the car and the rail, resulting in an injury necessitating the amputation of the toes and a portion of the foot.
The defendant argues that there should be a reversal, based on either of two grounds. The first is, that the trial court erred in not dismissing the action, because the New Jersey courts had no jurisdiction to hear and determine the case, for the reason that the plaintiff was a non-resident of New Jersey, the defendant a foreign corporation, and the alleged cause of action did not arise in this state. This contention is without merit. It has been repeatedly held by our courts that an action can be maintained in this state, by a non-resident against a foreign corporation, for personal torts committed in another state, and as the action is transitory in its nature, the venue may be laid where service can be had. Hale v. Lawrence, 21 N.J.L. 714 ; Ackerson v. Erie Railway Co., 31 Id. 309; Fortein v. Delaware, Lackawanna and Western Railroad Co., 90 Id. 137; Metcufskie v. Philadelphia and Reading Railway Company, 97 Id. 100.
The other ground upon which the defendant urges a reversal is based on the trial court's refusal to direct a verdict in favor of the defendant, alleging that there was no evidence of negligence on the part of the railroad company; and that the plaintiff's negligence and disregard for his personal safety was the proximate cause of the accident. There was evidence tending to show that the plaintiff's duty required him, at times, to move cars on the "empty track," as well as the one where the cars were loaded; and that no warning was given, by the defendant that the cars were about to be moved, which theretofore had been customary. There was also evidence to the contrary, thereby creating disputed questions of fact which were properly left to the jury for its determination, and we think there was sufficient proof to support the verdict.
The judgment under review should be affirmed. For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, BLACK, CAMPBELL, LLOYD, CASE, BODINE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 13.
For reversal — None.