93 N. J. L.

Zelman v. Pennsylvania Railroad Co.

and unreasonable restriction, whose effect would delay passengers and prolong the running time of the trains. Ordinarily there is no reason to anticipate danger from beginning to get ready the places of exit while the train is in the last part of its movement before coming to a full stop."

In England v. Boston and Maine Railroad, supra, a woman was a passenger upon a railroad train in the evening, when the brakeman opened and fastened back the door of the car and called out the name of her station. She passed out upon the platform, and, receiving no warning from the brakeman, stepped off while the train was still in motion and was injured. A verdict was directed in favor of the defendant, and, on appeal, it was affirmed. The court (at p. 492 of the report) said: "Assuming that the action of the brakeman in calling the station and fastening back the door was to be regarded as an invitation, it was clearly not an invitation to alight from a moving train, but from the train after it had come to a stop. It did not authorize the plaintiff to attempt to get off from the train when in motion. But we do not think that the action of the brakeman can, as a matter of law, be regarded as an invitation. It was, at the most, simply an announcement that the train was near the station, and would presently stop, and was given in order that the passengers intending to alight there might prepare themselves to do so when the train stopped. Bridges v. North London Railway, L. R., 6 Q. B. 377; Lewis v. London, Chatham and Dover Railway, L. R., 9 Q. B. 66. The plaintiff acted on the belief that the train had stopped when it had not stopped, and this mistake was due to her own omission to use reasonable care."

* *

*

In the Bridges Case, supra, the court (at p. 383 of the report) said: "The calling out the name of the station is not an act upon which such a person as the porter is to exercise a discretion whether he will do it or not. But just as there is a large board giving the name of the station, so (as the board may not be seen) the porter, when the train stops, calls out the name of the station for the information of the

Zelman v. Pennsylvania Railroad Co.

93 N. J. L.

passengers. It is not only information to those whose destination is the particular station that they have arrived at the end of their journey, but equally to those whose destination is farther on, that they have farther to go. In reality, the stopping of the train at the station is the invitation to the passengers to alight; for the passengers then have a right to expect that they can alight without danger, at the proper place for alighting. The announcement of the fact that the station arrived at is Highbury is no further invitation than the arrival itself. The passengers who are acquainted with the line, and know the stations, do not wait for the announcement and are not influenced by it."

Mearns v. Central Railroad of New Jersey (1900), 163 N. Y. 108, is a case also precisely in point. In that case the Court of Appeals of New York held: "A passenger upon a steam surface railroad, who, in the evening, as a vestibule train having the vestibule lighted, was nearing a station and the guard called out 'All out, Jersey City, last stop,' leisurely prepares himself to leave the train, waits a half a minute for it to reach the station building, and then, after the guard has opened the vestibule door and stepped across to the vestibule of the car ahead, proceeds out into the vestibule, and down the steps to the platform, in the belief that the train had stopped, although the guard gave him no warning or intimation to the contrary, cannot recover damages of the carrier for injuries sustained by reason of the train being still in motion, since no act or direction of those having charge of the train interfered with his free agency or in any manner diverted his attention." And the court said (at p. 111 of the report): "Upon these facts the trial court dismissed the complaint, and, we think, properly."

The suit was afterwards commenced anew in the United States Circuit Court for the southern district of New York, and a verdict was directed in favor of the defendant in that court, which was affirmed in the Circuit Court of Appeals, Second Circuit. Mearns v. Central Railroad of New Jersey, 139 Fed. Rep. 543; 71 C. C. A. 331.

93 N. J. L.

Zelman v. Pennsylvania Railroad Co.

The court (at p. 545 of the report in 139 Fed. Rep.) said: "The statement of the porter was not an 'invitation' to alight, but was the usual announcement of a fact of interest to the passengers, namely that they had reached or were about to reach the end of their journey. The opening of the door of the vestibule did not warrant the inference that the car had stopped, but was only another act to facilitate the rapid and orderly egress of the passengers, after the train had stopped.

* We cannot resist the conclusion that the deplorable accident which befell the plaintiff was attributable to his own lack of caution and was not due to the negligence of the defendant."

Hooker v. Blair (1915), 189 Mich. 278, is also directly in point. It was there held that: "A passenger who, on hearing the brakeman call a station, and seing him open the vestibule door, left his seat and went to the platform, believing from the jar of the train that it had stopped, and attempted to alight from the steps of the moving car, in the darkness, was guilty of contributory negligence, and the receivers of the road were not chargeable with negligence for announcing the station before the train arrived there, or had stopped." A verdict in favor of the plaintiff was reversed. The court (at p. 288 of the report) said: "We do not think plaintiff did what a reasonably prudent man should have done before leaving the train, nor do we think negligence on the part of the railroad was shown. Upon both grounds a verdict should have been directed for the defendant."

The rule to show cause in the case at bar will be made absolute.

Board of Health v. Clayton.

93 N. J. L.

BOARD OF HEALTH OF THE CITY OF PATERSON, PROSECUTOR, v. WALTER W. CLAYTON AND PASSAIC COURT OF COMMON PLEAS, RESPONDENTS.

Submitted March 20, 1919-Decided June 3, 1919.

No violation of an ordinance prescribing that "whatever is dangerous to human life or health," and adding clauses about buildings improperly ventilated, drained, &c., is charged by a complaint alleging that C. "had people congregated and invited people to congregate in his saloon at, &c., during an epidemic of influenza in the town."

On certiorari.

Before Justices PARKER and MINTURN.

For the prosecutor, Randal B. Lewis.

For the respondents, Walter R. Hudson.

The opinion of the court was delivered by

PARKER, J. The defendant Clayton was convicted of violation of section 90 of the Paterson health code, and, under Pamph. L. 1895, p. 764; Comp. Stat., p. 408, his conviction was summarily reviewed by the Court of Common Pleas, which set aside the 'conviction, whereupon the present writ was sued out.

We think the conviction was properly set aside, and for the fundamental reason that the complaint charges no violation of section 90 of the code.

That section reads as follows:

"That whatever is dangerous to human life or health, whatever building, erection, or part or cellar thereof is not provided with adequate means of ingress and egress or is not sufficiently supported, ventilated, sewered, drained, cleaned or lighted; and whatever renders the air, food or water unwholesome, are declared to be nuisances and are pro

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Board of Health v. Clayton.

hibited. Any person violating any of the provisions of this section shall be liable to a penalty of not less than five dollars nor more than one hundred dollars."

The violation charged is as follows: That defendant, on October 12th, 1918, "did violate the provisions of section 90 of an ordinance of the board of health of the city of Paterson, entitled, &c., in this, that Walter Clayton had people congregated and invited people to congregate in his saloon, at 172 Market street, such action of Walter Clayton, being dangerous to human life and health, there being an epidemic of influenza in the city of Paterson, contrary to the provisions of said section."

We are utterly unable to see what there is in the alleged conduct of Clayton that brings the case within the ordinance. Passing the argument, which has much to support it, that under the maxim noscitur a sociis the ordinance is aimed at physical conditions pertaining to inanimate objects and not at human conduct, and conceding for present purposes that the assembling of a numerous crowd in an unventilated and confined room during an epidemic of contagious disease is within the purview of the ordinance, as to which we express no opinion, there is yet no allegation of any such act in the complaint. Certainly, the mere inviting of people to congregate in his saloon was not dangerous to life or health, even under the construction argued for by prosecutor. So, it remains to consider whether such danger inhered in "having people congregated" in his saloon. There is nothing to show how many people there were, except that they were "congregated." The word "congregate" is defined in Webster's International Dictionary as "to come together; to assemble; to meet." Perhaps, two persons cannot be said to congregate; three, certainly, can. The charge, therefore, is, simply that "people" (as few as three, perhaps, and we have no proof that there were more) came together at the instance of Clayton in a saloon, of unknown dimensions, with unknown facilities of ventilation, on October 12th, and while influenza was in a general way epidemic in the town.