In Seaverns v. Lischinski, 181 Ill. 358, Chief Justice Cartwright observed that it had never been held in Illinois that a jury might return a verdict upon their own knowledge unsupported by other evidence, whether such knowledge was acquired in or out of court by a view or otherwise, and a verdict based exclusively on knowledge so acquired would be set aside for want of substantial evidence to support it; that a verdict unsupported by sworn testimony upon disputed facts has always been successfully challenged, whether there was a view or not, and if a jury had disregarded such evidence, or there was none which a reasonable person might believe and act upon, the verdict should be set aside; that in the very nature of things it is ordinarily impossible to put in the bill of exceptions persons, places or things exhibited to a jury; that the sense in which a bill of exceptions is understood is, that the bill contains all the evidence if it contains that which was presented at the trial, although objects, persons or scenes, of which the jury may have had a view, are not contained in it; that cases where a view has been permitted which the jury might consider in arriving at their verdict, either as evidence or to enable them to construe and apply the testimony, stand on a somewhat different footing than where there has been no such view, and a verdict cannot be based alone upon seeing a rope or a building or the evidence of the senses.

In the case of People v. Thorn, 156 N. Y. 286, a criminal case, the New York Court of Appeals observed that if the view were a part of the trial, or was the taking of testimony upon the trial, it may be that the view could not take place in the absence of the defendant; but they were not prepared to concede that the view was a part of the trial or was the taking of evidence. The trial could not take place in the absence of the judge, jury and defendant, and yet the provision of the code did not require the judge to attend upon the jury during the time it was inspecting the premises; that it was doubtless true that jurors might draw inferences from the objects which came under their vision; that if viewing the locality during the trial were the taking of testimony,

93 N. J. L.

Garland v. Furst Store.

why was not the seeing of the locality before the trial the taking of testimony? That if seeing were the taking of evidence, it would follow in every case that a juror who had seen, and was familiar with, the locality, would be incompetent to sit as a juror, for he would have taken testimony in the absence of the accused, with which he had never been confronted.

In that case the view was had under a provision in the New York code of criminal procedure, which, however, contains no peculiar feature distinguishing the view in those cases from one had in a civil cause. The case is a particularly strong one against the theory that a view by a jury constitutes the taking of evidence, because in that, a murder case, the defendant and his counsel were absent. It is true that defendant's counsel requested the view and waived the right of the defendant and himself to be present; but, after conviction of murder in the first degree, it was contended on behalf of the defendant, that the inspection was part of the trial and the taking of evidence, which could only be done in the presence of the defendant in a capital case, and that his waiver was void. It was held otherwise on the ground that the view was not a part of the trial and was not the taking of testimony.

It should be noted that the inspection or examination under section 30 of our Evidence act is to be ordered when it shall appear that such a proceeding would aid in ascertaining the truth of any matter in dispute between the parties to an action, not that it should be conclusive of anything or even evidence in and of itself. And the same is to be remarked of a view under sections 31 and 35 of the Jury act, where, by section 35, it is provided that the court may order that the jury shall view any place if such view is necessary to enable the jury better to understand the evidence given in the cause.

In our opinion the question presented to a court of review should be decided upon what appears in the record brought up to the appellate tribunal, notwithstanding that a view was had by the jury.

The judgment of the Supreme Court must be reversed, to the end that a venire de novo may issue.

For affirmance-MINTURN, BLACK, JJ. 2.

For reversal-THE CHANCELLOR, SWAYZE, TRENCHARD, BERGEN, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, JJ. 9.

ADELE GIARDINI, ADMINISTRATRIX, &c., RESPONDENT, WILLIAM G. McADO0, DIRECTOR-GENERAL OF RAILROADS, APPELLANT.

v.

Argued March 7, 1919-Decided June 20, 1919.

Plaintiff, the widow, obtained letters of administration in this state upon the estate of her deceased husband, and brought suit in the Camden Circuit Court under the New Jersey Death act against the director-general of railroads for damages arising from the death of her husband while a passenger on a train of the Pennsylvania Railroad Company, in the State of Pennsylvania, for the benefit of herself, as widow, and her children, who were next of kin of her deceased husband, and had a verdict, upon which judgment was entered. It was alleged in the complaint, and the testimony disclosed, that the accident resulting in the death of decedent occurred in the State of Pennsylvania, and, therefore, the Death act of our state does not apply. But as the record discloses no objections made to parties or pleadings, and that issue was joined and the case was tried upon its merits; and as on this appeal objection is made for the first time that the action does not lie in this state, it is held, that it does, and that the judgment should be sustained, with the exception of the quantum of damages; and that the case should be remitted to the court below with leave to the plaintiff to apply for, and direction to that court to grant, appropriate amendments to the proceedings, so as to bring the cause within the provisions of the Death act of Pennsylvania, which are given effect here by comity, and to then grant a new trial on the question of damages only, the award being excessive, because in the verdict was included a recovery for not only the widow but also the next of kin of deceased, while the statute of Pennsylvania allows it only for the benefit of the widow.

93 N. J. L.

Giardini v. McAdoo.

On appeal from Camden County Circuit Court.

For the appellant, Bourgeois & Coulomb.

For the respondent, Albert S. Woodruff.

The opinion of the court was delivered by

WALKER, CHANCELLOR. This appeal is from a judgment upon a verdict for plaintiff at the Camden Circuit, and defendant appeals to this court. No objections were made as to parties or pleadings. Issue was joined and the case was tried upon its merits.

The facts are: William Giardini, the husband of Adele Giardini, was killed by a train in the tunnel approach to the West Philadelphia, Pennsylvania, station of the Pennsylvania railroad system, on the evening of February 1st, 1918. He resided in Camden, New Jersey, and worked at Essington, Pennsylvania. As was his custom he boarded a Philadelphia train leaving Essington that afternoon. The train was scheduled to make no stops until the West Philadelphia station was reached. It consisted of coaches equipped with vestibule doors, and traps closing over the steps, so that the platforms could be kept entirely closed while the train was in motion. These precautions had been taken on other occasions when Giardini had been a passenger on the train. Giardini rode standing just outside of a car door on its front platform. That car and the one in front were so filled with passengers that many could not enter and were forced to remain out on the platforms. The conductor passed through the train and took the tickets of the passengers on the platforms. Neither vestibule doors nor the step coverings were closed. Just before the train reached the station at West Philadelphia it stopped for a moment, and the passengers apparently believing it to be the station-stop, pushed out of the cars. Giardini was crowded off the platform and down the steps. Had the vestibule doors been closed and the trap shut he could not have been forced off the train. There was no train hand at either of the platforms; no warning was given of a pre

mature stop, and the train again and almost immediately started without warning. Giardini's dismembered body was later found at that point, distant about three hundred and sixty feet from the passenger platform.

The grounds of appeal are―(1) because the trial judge refused to direct a verdict against the plaintiff and in favor of the defendant at the close of the testimony in the case; (a) because there was no proof of negligence on the part of the defendant; (b) because the defendant assumed the risk of injury. (2) Because the court refused to charge that where a person boards a crowded train and is unable to enter the cars and rides on a platform he assumes the risk, and, if jostled off the train by the crowd, there can be no recovery. (3) Because the declaration and record in the cause fail to show a right in the plaintiff to prosecute this suit. (4) Because the declaration and record show that there is no right of recovery in the plaintiff. (5) Because the declaration and record fail to show a right of recovery against the defendant in New Jersey, for an injury and death which occurred in Pennsylvania. (6) Because it appears from the declaration and record that there is no right of recovery against the defendant.

As to the first reason assigned for reversal,. the judgment should not be disturbed if there were any proof of negligence on the part of the defendant company, and not unless it be shown as matter of law or fact that the defendant assumed the risk of injury. There was such proof, and assumption of risk was not shown.

The law of Pennsylvania is applicable in this case; being enforced here by way of comity. Lower v. Segal, 59 N. J. L. 66. Joseph Conwell, Esquire, a member of the bar of that state, practicing in Philadelphia, was sworn for the plaintiff and testified that he had made an examination of the law of Pennsylvania with respect to the duty of a common carrier in the circumstances of this case, and that that duty is to exercise the strictest vigilance, not only in carrying the pas senger, but in setting him down at a station, and that it is also the duty of the carrier to announce the name of the sta