Sibley v. City Service Transit Co. , 2 N.J. 458 ( 1949 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The appeal is from a judgment of the Appellate Division of the Superior Court which affirmed a judgment for the plaintiffs in an action in tort for negligence in the operation of a motor bus in these circumstances:

Plaintiffs were employees of the United States Government at the Picatinny Arsenal near Dover, New Jersey, working on the "swing" shift from 4 P.M. to midnight. They were all residents of Newark and were daily commuters on buses operated by defendant, a common carrier. On February 27, 1943, they took passage for home on a bus provided by defendant which left Dover at 12:40 A.M. with 34 passengers in all, workers at the Arsenal. A mile or two from Dover, in a sparsely settled area, a rear wheel rolled off the vehicle. No one was injured in the mishap. The distance to Newark was between 20 and 25 miles. It was "very, very cold" and "blustery;" there had been snow and sleet, and the roadway was "very glassy." One of the plaintiff passengers said she was "shivering" and "freezing." The operator, Barner, testified that he made an effort to communicate by telephone with defendant's garage, but there was no response. He then telephoned to one Zingler at his home in Nutley and, after conversing with him, returned to the disabled bus. He described Zingler as "more or less a boss or foreman — our dispatcher." Barner said he remained in the bus, or nearby, doing what he could to provide heat for the passengers by keeping the motor in operation, until a bus from the Arsenal came to the scene and took the stranded passengers and Barner on board. The transfer of the passengers was under Barner's supervision; and he directed the operator as to the route to be taken to Newark. On the way, the operator lost control of the vehicle; it left the highway, and the plaintiffs suffered injuries for which the recovery now under review was had.

Zingler testified thus as to Barner's telephone call to him: "I told the driver to go back to his bus and wait; that I would dispatch a bus either out of the garage or turn one back that was supposed to be at the diner — they stop at the diner on the way home for coffee on the night shift — that I would turn one of those buses around." He said he "dispatched a bus out of the garage." But Barner said there was no response when he sought telephonic communication with the garage shortly before. Only the Arsenal bus arrived at the scene; and this was two hours or so after the mishap occurred.

Barner did not relate his conversation with Zingler. He was vague as to what he did when he returned to the disabled vehicle, pleading loss of recollection; but there is in the evidence a sufficient basis for the finding that he, himself, summoned the Arsenal bus and arranged for the conveyance of his passengers to Newark. He insisted he could not "remember" whether he "called the Arsenal that night or not;" but he admitted that he stated in writing shortly after the occurrence that he had telephoned to the Arsenal for a bus, was told to stand by, and received word ten minutes later that a bus was en route, and that it arrived "in a few minutes;" and he said that the statement was correct "as far as" he could "remember." He also testified that his bus had been "stranded a couple of hours" before the relief bus came from the Arsenal. And one of the plaintiffs, Simmons, testified that Barner hailed a passing automobilist and asked for and was given transportation to the Arsenal, and that he returned in the Arsenal bus and directed the transfer of the passengers. The operator of the Arsenal bus, one Herman, was not called to the witness stand; and there is no evidence that a relief bus of defendant actually went to the scene. There is evidence that the request to the Arsenal for assistance was received "an hour or more" after Zingler had been notified of the need for a bus. This came from the officer in charge of the Arsenal, who said aid was refused when the call first came because the responsibility was the carrier's when a vehicle became disabled. But it was, he said, "a very bitter cold night and very slippery; the people were freezing out there, and no bus had come, and it just was not human to leave them out there, and besides if we did not get them home we surely would not get them back to work the next day;" and so a bus was dispatched from the Arsenal.

The authority of an agent to appoint another agent for his principal may be express or implied. The authority may be inferred from the nature or extent of the work to be done, from the general course of conducting the business, or from the particular circumstances of the case. Hollidge v. Duncan,199 Mass. 121, 85 N.E. 186 (1908); Beaucage v. Mercer,206 Mass. 492, 92 N.E. 774, 1910); Gleason v. Amsdell, 9 Daly 393 (1880). Implication is but another term for meaning and intention; express authority given to an agent includes by implication, whether the agency be general or special, unless restricted to the contrary, all such powers as are proper and necessary as a means of effectuating the purposes for which the agency was created. Dispatch Printing Co. v. National Bank ofCommerce, 109 Minn. 440, 124 N.W. 236 (1910). Such authority is implicable where an unforeseen contingency or emergency arises making such appointment reasonably necessary for the protection of the interests of the principal entrusted to the agent,Restatement, Agency, § 79. The rule is qualified in the,Restatement as applicable only where it is "impracticable to communicate with the principal."

A mechanical breakdown of a bus is hardly an unforeseen contingency. But the breakdown under the particular conditions here presented gave rise to an emergency affecting the health and safety of the passengers, as well as their comfort and convenience; and it was peculiarly the function of the jury to assess the facts and determine whether defendant's operator had exceeded his authority. Zingler's testimony in this regard was not conclusive of the issue. Its probative value was a question of fact. Schmidt v. Marconi Wireless Telegraph Co., 86 N.J.L. 183 (1914). Moreover, the proofs leave one in serious doubt as to Zingler's connection with defendant and the extent of his authority; if he was a mere "dispatcher," he could not revoke the implied authority and the consequent duty of the operator to exercise a reasonable discretion in meeting the emergency — to serve the needs of the passengers and thus to protect the interests of his employer. And what he said to the operator, as he related it, had no such effect; he simply undertook to send a bus if he could find one, not to curtail the agent's authority in the exigency. At the most, the significance of what he said was a question for the jury under all the circumstances. When the Arsenal was called for aid, it was reasonably certain that Zingler's efforts to find a bus had been unavailing. The emergency continued; and the responsibility for the care of the stranded passenger's was the operator's.

It is urged that there was error in this passage of the charge:

"Now, in connection with the question as to whether or not the defendant in this case is charged with negligence, you may consider whether the bus in question was shown to be under the exclusive control of the defendant or its agent at the time of the accident, whether the accident which occurred was such as in the ordinary course of things does not happen or might have been prevented if the operator of the bus used proper care. And if you are satisfied from the proof that such are the facts, then you would have the right to infer negligence, unless the defendant has proved that due care was exercised."

The exception is not well taken. The criticism is that the judge thereby invoked the doctrine of res ipsa loquitur. A common carrier of passengers is charged with the duty of using a high degree of care for their safety. Spalt v. Eaton,118 N.J.L. 327 (Sup. Ct. 1937); affirmed, 119 N.J.L. 343 (E. A. 1938). Negligence was reasonably inferable from the circumstances. The bus went off the highway and dashed into a wall; and from this circumstance alone, nothing else appearing, the want of the requisite degree of care is fairly deducible. There was evidence that just before the bus left the highway, the operator, Herman, exclaimed: "Here, we go." This suggests forewarning. It was for the jury to say whether it signified the operation of the bus in the face of a known and obvious danger, and whether the operator exercised a high degree of care for the passengers' safety. As we have seen, Herman was not called as a witness. The jury were not told that in such circumstances the law shifts the burden of proof to the defendant, as in Hughes v.Atlantic City R.R. Co., 85 N.J.L. 212 (E. A. 1914). The instruction was merely that the jury had "the right to infer negligence," unless the defendant had proved the exercise of due care, not that they were required to do so. The principle was expressed in this very language by the old Court of Errors and Appeals in Whalen v. Consolidated Traction Co., 61 N.J.L. 606 (E. A. 1898). The expression is unexceptionable. The inference is permissible, not required. The occurrence itself is evidence of negligence; whether it amounts to proof is the exclusive province of the jury.

The judgment is affirmed.