N.J. Model Civil Jury Charge 5.73

5.73 CARRIERS FOR HIRE (Approved 6/88)

A. General Duty of Common Carriers to Passengers

In this case (you may find from the evid ence that) the defendant is what is

known in the law as a common carrier. A common carrier undertakes for pay to

carry all persons who apply for passage, so long as ther e is room and there is no

legal excuse for refusing. 1 Typical common carriers ar e railroads, street cars,

subways, elevated railroads, buses, steam ships, airplanes, taxicabs and others

similarly engaged in public transportation.

A common carrier must exercise a high degree of care to protect its

passengers from dangers that are known or are reasonably foreseeable. Carriers

must use the utmost caution to protect their passengers, the kind of caution that is

characteristic of a very careful and prudent person. A carrier must act with the

highest possible care consistent with the nature of the undertaking involved.2

1. Disabled Passenger

Indeed, where the carrier, through its employees, is aware that a passenger

about to board has a physical disability, th e carrier owes that passenger an even

1 Weehawken Tp. v. Erie Railroad Co., 20 N.J. 572, 581 (1956).

2 Harpell v. Public Serv. Coord. Transp., 20 N.J. 309, 316-317 (1956); Pope v. Veterans Taxi

Serv., 97 N.J. Super. 274, 277 (App. Div. 1967).

greater degree of attention than if the passenger had no physical disability.3

2. Against Acts of Fellow Passengers

This includes the duty to protect passengers from wrongful acts of co-

passengers, if the utmost care could ha ve prevented those acts from injuring a

passenger. If a danger was known or reasonably could have been anticipated, the

carrier has a duty to protect its passengers from any injury that could be caused by

that danger.4

3. As to Acts of Third Parties

This includes the duty to protect pa ssengers from wrongful acts of a third

party, if the utmost care could have prevented those acts from injuring a passenger.

If a danger was known or reasonably could have been anticipated, the carrier has a

duty to protect its passengers from any injury that could be caused by that danger.5

4. Sudden Stops or Jerks

A common carrier must exercise a hi gh degree of care in starting, stopping

or decreasing the speed of a vehicle so as not to imperil the safety of passengers.

A violent stop, jerk or lurch which would have been unlikely to occur if

3 Carter v. Public Serv. Coord. Transp., 47 N.J. Super. 379, 388-389 (App. Div. 1957).

4 Harpell v. Public Serv. Coord. Transp., 20 N.J. 309, 316-317 (1956).

5 Id.

proper care had been exercised justifies the inference of negligence in the operation

or maintenance of the vehicle or its brakes.6

5. Overcrowding

The overcrowding of a passenger vehicle without more is not in and of itself

negligent. However, it is well recognized that overcrowding creates dangers. A

common carrier must exercise a high degree of care to protect its passengers from

reasonably foreseeable dangers arising from overcrowding.7

B. When Carrier-Passeng er Relationship Starts

1. At Station

A person becomes a passenger when he /she enters upon the station grounds

of the carrier through the approaches pr ovided by the carrier and that person has

the intention of becoming a passenger. If you find that (a) plaintiff entered the

station grounds through the usual way provi ded for passengers and, (b) plaintiff

had the intention of becoming a passenger by paying the fair (either before or after

entering the [train]), then plaintiff had become a passenger. He/She therefore was

entitled to the care owed by a carrier to a passenger.8

6 Gaglio v. Yellow Cab Co., 63 N.J. Super. 206, 209 (App. Div. 1960).

7 Miller v. Public Serv. Coord. Transp., 7 N.J. 185, 187-188 (1951).

8 Exton v. Central Railroad Co ., 62 N.J.L. 7, 12 (Sup. Ct. 1898), aff’d 63 N.J.L. 356 (E.& A.

2. Boarding Vehicle 9

A person becomes a passenger when he /she boards the carrier’s vehicle,

intending to become a passenger, and the carrier actually or impliedly consents to

the person becoming a passenger. The person must be present at a proper time and

in a proper manner and at some place under the control of the carrier to allow the

carrier to have the opportunity to exercise the degree of care which the law requires

on behalf of the passenger. The carrier must know the person intends to board the

vehicle. Knowledge by the carrier may be either actual or what a reasonable carrier

should have been aware of by reason of the acts and conduct of the person and by

the facts and circumstances presented.10

C. Duty as to Transportation Facilities

A common carrier has a duty to exercise reasonable care in the construction

and maintenance of station buildings, platforms and approaches, so that they are

reasonably safe for passengers to use them.11 Passengers have a right to assume

1899).

9 As to transferring from one vehicle to another, see Walger v. Jersey City Railway Co., 71 N.J.L.

356 (Sup. Ct. 1904), and Rourke v. Hershook, 3 N.J. 422, 425 (1950).

10 Martin v. West Jersey Railroad Co., 87 N.J.L . 648, 649 (E. & A. 1915); Bernadine v. Erie

Railroad Co., 110 N.J.L. 338, 343 (E. & A. 1933).

11 Buchner v. Erie Railroad Co ., 17 N.J. 283, 285-286 (1955); Bohn v. Hudson & Manhattan

Railroad Co., 16 N.J. 180, 185 (1954).

that those facilities are reasonably safe.12 If a carrier fails to meet this duty — by

constructing or maintaining the property so as to make it likely to be a source of

danger to passengers and others lawfully using the station13 — then the carrier is

liable to persons who enter the facilities in response to the carrier’s invitation and

are then injured as a result of the carrier’s negligence.

[Add the following paragraph if a danger existed due to weather:]

If there is a danger to pa ssengers from the effects of weather, for example, a

slippery condition due to ice, if that danger reasonably could be anticipated by the

carrier, the carrier has a duty of a high degree of care to its passengers. 14 I n

deciding whether the carrier met its duty, you should understand that the carrier

must have had reasonable time to remove or remedy the condition resulting from

the effects of weather.15

12 Bohn v. Hudson & Manhattan Railroad Co., 16 N.J. 180, 185 (1954).

13 Ibid.

14 Karmazin v. Penna. Railroad Co., 82 N.J. Super. 123, 130 (App. Div. 1964).

15 Id. at 130-131.

[Add the following paragraph when carrier does not own or control facilities:]

The carrier owes that duty of reasona ble care to passengers even if it does

not own or control the facilities. That duty cannot be changed by any agreement

between the carrier and the terminal company.16

D. Duty Owed on Discharge of Passenger 17

1. Place of Stopping Vehicle

This includes the duty to select a reasonably safe place for the passenger

to get off the vehicle and leave. If you find that the carrier, in selecting a place

to unload plaintiff, failed to exercise its high degree of care, and as a result that

brought about his/her injuries, you should find for plaintiff. 18 But, understand,

that a common carrier does not have a duty to anticipate every uneven surface or

defect in the road or alongside of the ro ad, and then stop the vehicle to avoid the

remote possibility of a passenger ste pping on some uneven surface or in a

depression which, even though the carrier exercised reasonable watchfulness,

did not appear to be dangerous.19

16 Horelick v. Penna. Railroad Co., 24 N.J. Super. 413, 417 (App. Div. 1953), aff’d, 13 N.J. 349,

354 (1953).

17 After stating general duty, see Model Civil Charge 5.30A.

18 Meelhein v. Public Serv. Coord. Transp., 121 N.J.L. 163, 164 (E.&A. 1938).

19 Snell v. Coast Cities Coaches, 15 N.J. Super. 595, 599 (App. Div. 1951).

2. Leaving Station

This includes the duty to use reasona ble care to provide a safe means for

passengers to exit the station. The dut y to passengers does not end when the

passengers are safely carried to their destination, but continues on while they are

leaving the station where they got off the vehicle.20

E. Persons on Railroad Tracks

Plaintiff says that he/she was injure d when he/she was hit by a moving train.

The railroad company 21 claims that it lived up to its duty to plaintiff and,

additionally, plaintiff was more responsible for the accident than it was. The first

decision you’re going to have to make is what plaintiff’s status was, what category

plaintiff was in when he/she was on the railroad tracks.22 The law says that when a

person is on another’s property, that pe rson falls into one of three possible

categories: he/she is an invitee or a licensee or a trespasser. So when I say you

must decide what status plaintiff had when the accident took place, that means that

you are to determine whether plaintiff was an invitee, a licensee or a trespasser.

That is important because, depending on your decision as to plaintiff’s status, there

20 Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955).

21 The statutory limitation on liability, N.J.S.A. 48:12-152, only applies to a railroad company,

not to its employees. Potter v. Finch & Sons, 76 N.J. 499, 503 (1978).

22 Benedict v. Podwats , 109 N.J. Super. 402, 407 (App. Div. 1970), aff’d 57 N.J. 219 (1970):

“Indeed, the ascertainment of that status is an essential preliminary to the application of the

are different duties or standards of care that the railroad company was required to

meet. In other words, if plaintiff was an invitee, the railroad company was obliged

to meet a particular duty — to act in a cer tain way — toward plaintiff; if plaintiff

was a licensee, there is a different duty that applied; and if plaintiff was a

trespasser, then the railroad company owed a third kind of duty to him/her.

I begin by describing what an invitee, a licensee and a trespasser each is. As

you will see, the proper category for a pa rticular person is determined by the

circumstances that brought him or her onto another’s property.

23

An invitee is a person who is on anot her’s property for the benefit of the

property owner,24 or because his/her visit was induced and encouraged by the

owner.25 For example, if I am a homeowner and you are delivering fuel oil to me

at my home, when you come onto my property, you would be an invitee since you

would be there, at least in part, for my be nefit, which is that I now have fuel oil

available as I need it. Or, as another illustration, if I am a merchant operating a

store open to the public, I am encouragi ng you to come into my store by being

open to the public. Again, you would be an invitee.

standard of care to be exercised by the land occupier.”

23 Daggett v. DiTrani, 194 N.J. Super. 185, 189 (App. Div. 1984).

24 Id. at 189-190.

25 Handelman v. Cox, 39 N.J . 95, 105-110 (1963). Modify language of charge if the railroad

company is possessor, but not owner, of railroad tracks.

The next category is that of a licens ee. A licensee is a person who, one, is

not an invitee, and, two, is pe rmitted to go onto another’s property. 26 Routine

customs and practices often allow you to decide whether a land owner permits or

is willing to have another pa rty come on to the property. 27 Those customs may

be such that it is entirely reasonable for someone to assume that his/her presence

is permitted unless he/she is told otherwis e. An example of a licensee might be

someone who often cuts across a corner of one’s property as a shortcut, where

there is no fence to preven t that. Or a licensee might be a neighbor who goes

next door to borrow some tools or pay a social visit.

The final category is a trespasser. A trespasser is someone who goes onto or

remains on another’s property and is neither an invitee nor a licensee. A trespasser

would be someone who is not on another’s property for the benefit of the owner,

and who is neither invited nor allowed to go onto the property. We do have a law

in New Jersey which says that it is unl awful for a person other than a railroad

employee to walk along railroad tracks.28 However, merely because someone is on

railroad tracks does not mean necessarily that it was unlawful. Look at all the

26 Snyder v. I. Jay Realty Co., 30 N.J. 303, 312 (1959).

27 Ibid.

28 N.J.S.A. 48:12-152. See also to Demetro v. Penna. Railroad Co., 90 N.J. Super. 308 (App.

Div. 1966), where child held not a trespasser when she was killed after going onto tracks to push

three smaller children from path of train.

circumstances29 under which plaintiff came to be on the railroad tracks. Did he/she

mean to go onto the tracks or was he/she pushed onto the tracks? Did he/she

become ill and, as a result, fall onto the tracks?30

To repeat, the first thing you must d ecide is what plaintiff’s status was

when he/she was on the railroad tracks. You do that by looking at all the

evidence and then deciding was it more lik ely than not that plaintiff was an

invitee; if not, then you judge whether all the evidence shows it was more likely

than not that plaintiff was a licensee; if not, then plaintiff must have been a

trespasser.

If you decide that plaintiff was an invitee, then the railroad company had a

duty to exercise ordinary and reasonable care to protect plaintiff. It had to take

steps which were reasonable and prudent for plaintiff’s safety.31

29 By analogy to Baer v. Sorbello, 177 N.J. Super. 182, 184-185 (App. Div. 1981).

30 See Eden v. Conrail, 87 N.J . 467 (1981), where plaintiff suffered an epileptic seizure while

standing on railroad platform awaiting train and fell onto train tracks.

31 Handleman v. Cox, 39 N.J. 95, 111 (1963). Note should be made of the potential assertion

that a railroad can be classified as a dangerous instrumentality. See Renz v. Penn Central Corp.,

87 N.J. 437, 462 (1981).

If you decide that plaintiff was a licen see, then the railroad company had a

duty to not perform acts which are willfully injurious. 32 In other words, the

railroad could not intentionally do some thing that would be highly likely to

cause injury or death. 33 And where there was a concealed danger known to be

present, the railroad company was bound to give warning of it.34

If you decide that the plaintiff was a trespasser, 35 then the railroad company

had a duty

[Where plaintiff is adult trespasser]

to refrain from acts which are willfully injurious, that is, the railroad could not

intentionally set things up so as to make it highly likely that death or injury would

result.36

[Where plaintiff is infant trespasser]

to the extent that it is foreseeable that a child would intrude onto the railroad tracks,

to exercise reasonable care so as to protect a youngster against an unreasonable risk

32 Snyder, supra, at 316.

33 Reilly v. Spiegelhalter, 100 N.J. Super. 276, 281-282 (App. Div. 1968).

34 Ibid.

35 The Supreme Court, in Renz, supra, at 463, expressly did not determine the nature of the

standard of care or if the railroad is a dangerous instrumentality.

36 Renz, supra, at 461. Wytupeck v. Camden, 25 N.J. 450, 463 (1957).

of harm.37 What is reasonable care is meas ured by the foreseeability of a child

trespassing and the extent of risk of harm. As the foreseeability of trespass

increases and as the risk of harm increases than the more reasonable care must be

used.38

If a least five out of six of you have judged that the railroad company did not

live up to its duty of care to plaintiff, you will then have decided that the company

was negligent. The next question for you to decide is whether that negligence

proximately caused plaintiff’s injury. By that, I simply mean that something

happened to set the chain of events in motion to naturally and probably make the

accident take place; in other words, was the company’s negligence, assuming you

find it was negligent, a substantial factor in producing the accident?

If you decide that the train company wa s negligent and that that negligence

proximately caused plaintiff’s injury, you’re next going to have to determine the

correctness of the company’s claim that plaintiff was also negligent.

If you find that plaintiff was a trespasser, then I tell you as a matter of law

that plaintiff was to some extent negligent.39 You then must go on to compare the

37 DeRobertis v. Randazzo, 94 N.J. 144, 157 (1983).

38 Simmel v. N.J. Coop Co., 28 N.J. 1, 9 (1958).

39 In Renz, supra, at 460, it was held that a trespasser is at least minimally negligent within scope

of railroad immunity act, N.J.S.A. 48:12-152.

negligence of the parties.40

If you find that plaintiff was not a trespa sser, it may still be that plaintiff was

to some extent negligent. If you decide that plaintiff was not on the railroad tracks

voluntarily, he/she was not necessarily negligent. 41 But, based on all of the

circumstances other than plaintiff’s involuntary presence on the tracks, such as the

reasons leading up to plaintiff being in a position to end up on the tracks, not of

his/her own accord, you must decide whether the train company has shown by the

greater weight of the ev idence that plaintiff was him/herself negligent.

42 If you

find that plaintiff was negligent to any extent, and that that negligence proximately

caused his/her injury, as I have described that concept to you, you then must go on

to compare the negligence of the parties.43

F. Liability for Loss of or Damage to Goods Shipped

In this case (you may find from the evid ence that) the defendant is what is

known in the law as a common carrier. A common carrier undertakes for pay to

carry the goods of all persons who want to ship them.

44 Typical common carriers

40 Court should continue by charging prin ciples of comparative negligence under N.J.S.A.

2A:15-5 et seq.

41 Eden, supra, at 472-473.

42 Eden, supra, at 472-473.

43 Court should continue by charging prin ciples of comparative negligence under N.J.S.A.

2A:15-5.1 et seq.

44 Mershon v. Hobensack, 22 N.J.L. 372, 377 (Sup. Ct. 1850).

are railroads, trucking companies, boats, airplanes and others similarly engaged.

A common carrier is absolutely and to tally responsible for the loss of or

damage to property given to the carrier for transportation,45 with an exception that I

shall describe to you in a moment.46 The shipper — that is, the person who ships

the goods using a common carrier — need only prove, one, delivery of the property

in good condition to the common carrier and, two, either failure to return the goods

or the return of those goods in a damaged condition. If these are shown and there

is no other proof, plaintiff is entitled to your verdict. 47 Due care or lack of

negligence by the carrier is not meaningful.

I told you a minute ago that there is an exception which can excuse a carrier

from its absolute responsibility to a shipper. I want to describe this to you now.

[Charge Appropriate Exception, as Applicable, to Facts of Case:]

[1. The exception comes about if th e loss or damage was caused solely

by an act of God. An act of God is a natural event such as lightning, violent winds

or seas or other accident of nature without any intervention by people. If the loss

45 NOPCO Chem. Div. v. Blaw-Knox Co., 59 N.J. 274, 281 (1971); W.J. Casey Trucking v. G.E.,

151 N.J. Super. 151, 155 (Law Div. 1977).

46 Although there are four exceptions, the court should charge only the exception which factually

may apply to the case.

47 Jos. Toker Co. v. Lehigh Valley Railroad Co., 12 N.J. 608, 612 (1953); see also, Silver Lining,

Inc. v. Shein, 37 N.J. Super. 206, 211-212 (App. Div. 1955).

or damage is caused by human conduct along with an act of God, the carrier is

liable. The carrier is excused only if an act of God solely brought about the loss or

damage.]

[2. The exception comes about if th e loss or damage was caused solely

by public enemies, that is, an act of war. In that event, the carrier is not liable.]

[3. The exception comes about if th e loss or damage was caused solely

by the inherent nature of the property. By that I mean that the goods were of such

a nature as to spoil or deteriorate by the mere passage of time even though they are

carried in a manner suitable for their transportation.

48 For example, if eggs are

being shipped, and if you find that eggs spoil with the passage of time, and if the

carrier shipped the eggs in an appropriate and suitable manner, for instance, in a

refrigerated truck, but despite that and solely because of the length of the trip and

the time that it took, the eggs spoiled, then the carrier would not be liable. But if

you find that the carrier delayed the transportation and that caused too much time

to pass, then the carrier would be liabl e. The carrier has a duty to carry the

shipment safely with due regard to its perishable nature.]

48 NOPCO Chem. Div. v. Blaw-Knox Co., supra, at 281-282.

[4. The exception comes about if the loss or damage was caused by the

fault of the shipper. If the shipper p acks the goods improperly and that improper

packing is not apparent to the carrier by ordinary observation and the loss or

damage results from the improper packing, the carrier is not liable. But if the

improper packing is apparent and the ca rrier accepts the goods without a special

agreement limiting its liability, the carrier is liable.49]

The need or burden to prove that th e loss or damage was caused solely by

the exception that I have described to you is upon the carrier. The carrier must

show, by the greater weight of the evidence, that the exception applies. [The need

to prove that there was an agreement limiting its liability is also on the carrier and

that agreement must be interpreted most favorably to the shipper and against the

carrier.50]

49 W.J. Casey Trucking v. G.E., 151 N.J. Super. 151, 157-158 (Law Div. 1977); Lincoln Farm

Products Corp. v. Central Railroad Co., 81 N.J. Suer. 161, 166-168 (App. Div. 1963).

50 To be charged only if fourth exception is given. For basis, see Reich v. McGill, 119 N.J.L.

358, 361 (E.&A. 1937); Hill v. Adams Express Co., 82 N.J.L. 373, 377 (E.&A. 1911).