Hayward v. N. Jersey St. Ry. Co.

• Decision Date: 04 March 1907
• Citation: 65 A. 737,74 N.J.L. 678
• Parties: HAYWARD v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

65 A. 737

74 N.J.L. 678

HAYWARD

v. NORTH JERSEY ST. RY. CO.

Court of Errors and Appeals of New Jersey.

March 4, 1907.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County.

Action by Carrie Hayward against the North Jersey Street Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Bedle, Edwards & Holmes, for plaintiff in error. Warren Dixon, for defendant in error.

DILL, J. The plaintiff below, while crossing Newark avenue, Jersey City, was struck by a trolley car of the defendant company, receiving injuries for which she recovered damages in the Hudson circuit court. The writ of error in this case presents the question as to whether the circuit judge erred in refusing both to nonsuit the plaintiff, and in refusing to direct a verdict for the defendant, upon the ground that contributory negligence had been shown upon the part of the plaintiff. The case was submitted to the jury, and they found for the plaintiff. It is not for this court to consider what its verdict would be on the printed case, but whether, on the evidence, the circuit judge could have taken the case from the jury.

The undisputed facts were that the plaintiff below, a young lady, while crossing on foot from the southerly to the northerly side of Newark avenue, in Jersey City, at about 10 o'clock at night, was struck by a car of the defendant company. Her leg was broken, and she received other injuries. In the immediate locality where the accident occurred there was a public trolley sign, suspended over the tracks by the defendant corporation, requiring cars to "Run Slow!" Immediately preceding the accident, a police patrol wagon was being driven in a westerly direction, up Newark avenue, on the northerly side of the street, at a rapid pace; the horses galloping, the gong sounding and otherwise creating disturbance and confusion in the street. The plaintiff waited for it to pass and immediately thereafter was struck by the left-hand or northerly side of the fender of an east-bound car on the southerly track. Her attention was attracted by the patrol wagon to the exclusion of other objects it the street. She did not see the car approaching, and there is no evidence that she looked to ascertain whether a car was approaching. The disputed question was as to where she waited for the patrol wagon to pass. The evidence of the plaintiff on the direct, and that of other witnesses in her behalf, was that she was in the act of crossing, had passed across or nearly across the southerly or east-bound track; and at that point, hearing the patrol wagon coming on the track in front of her, she stopped and waited for it to pass, and while thus waiting between the tracks was struck by the car. The insistment of the defendant was that while the plaintiff was in a place of safety, on or near the sidewalk, and before she had crossed either of the tracks, her attention was attracted by the oncoming patrol wagon, and that in such place of safety she waited, and, after it passed, started across the southerly track without looking to see whether any car was approaching, and was thus struck by the oncoming car.

The defendant below, both on the motion for a nonsuit and for a direction of a verdict, relied upon the testimony of the plaintiff upon cross-examination, where she said: "Q. Did you see this car at all? A. No, sir. Q. You weren't looking? A. I was looking at the patrol, that is what took my attention. Q. You heard it coming? A. Yes, sir. Q. You were about to cross the street? A. Yes, sir. Q. And waited until it got by? A. Yes, sir. Q. Then you crossed the street? A. Yes. Q. Hurriedly or slowly? A. Well, I was not hurrying to get out of the way of anything. I was going right across. Q. Looking straight ahead? A. Well, as I say, my attention was taken up by the patrol wagon. Q. You didn't hear anything else? A. I heard the clatter of the patrol bell. Q. That made quite a noise? A. Yes, sir. Q. You didn't look where you were going, except going across the street? A. Yes, sir." This testimony, the plaintiff in error contends, disclosed a failure of the plaintiff below to exercise ordinary caution. Assuming for the purpose of this discussion that this evidence was susceptible of the construction placed upon it by the plaintiff in error, and permitted no other legitimate inference, nevertheless, because such testimony thus construed was directly at variance with the testimony of the plaintiff below on her direct, and with the evidence of other witnesses called in her behalf, it could not avail the defendant upon its motion either for a nonsuit or for a direction of the verdict. The trial judge could not ignore the testimony of other witnesses for the plaintiff in favor of that given by her on cross-examination, nor pass upon conflicting claims to credibility. The motion was in effect a demurrer to so much of the whole testimony as was favorable to the plaintiff, admitting its verity in point of fact for the purpose of denying its sufficiency in point of law. Kaufman v. Bush, 69 N. J. Law, 645, 56 Atl. 291.

Therefore, in dealing with the question before us, we must assume that the plaintiff was in the act of crossing the street, had crossed the southerly or east-bound tracks, when she was held up by the patrol wagon coming on the track in front of her; that while thus waiting between the tracks, immediately after its passage, she was...