Alvina v. Pub. Serv. Ry. Co.

• Decision Date: 19 June 1922
• Docket Number: No. 25.,25.
• Citation: 117 A. 709
• Parties: ALVINA v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

117 A. 709

ALVINA

v. PUBLIC SERVICE RY. CO.

No. 25.

Court of Errors and Appeals of New Jersey.

June 19, 1922.

(Syllabus by the Court)

Appeal from Supreme Court.

Action by Philomena Alvina, administratrix, etc., against the Public Service Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

Lefferts S. Hoffman and Joseph Coult, Jr., both of Newark, for appellant.

William De Lorenzo, of Hackensack, for respondent.

BLACK, J. The only question that is open for discussion and decision in this case, is whether any facts have been established from which the alleged negligence of the defendant may be reasonably inferred. The trial court held there was evidence of such negligence and then submitted the case to the jury to determine whether negligence ought to be inferred. This is the substantial error complained of as a ground of appeal. We think it was error for the trial court to submit this case to the jury, which leads to a reversal of the judgment.

The suit was brought to recover damages under the Death Act (Comp. St. Supp. 1911-1915, p. 474), growing out of an alleged collision between a motorcycle and a trolley car. Applying elementary legal principles to the facts of the case, the error in the ruling of the trial court is quite clearly demonstrated. Thus the truth of the plaintiffs evidence and every inference of fact which can be legitimately drawn therefrom must be admitted on a motion to nonsuit or direct a verdict in favor of the defendant. Jones v. Public Service Ry. Co., 86 N. J. Law, 648, 92 Atl. 397; Fox v. Great Atlantic, etc., Co., 84 N. J. Law, 726, 87 Atl. 339. [2] Negligence is a fact which must be shown. It will not be presumed. There is always a presumption against negligence. McCombe v. Public Service Ry. Co., 95 N. J. Law, 189, 112 Atl. 255.

The only presumptions of fact which the law recognizes are immediate inferences from the facts proved. Price v. New York Central R. R. Co., 92 N. J. Law, 429, 105 Atl. 187; McCombe v. Public Service Ry. Co., 95 N. J. Law, 189, 112 Atl. 255; Adriance v. Schenck Bros., 95 N. J. Law, 187, 112 Atl. 408.

Proof of a collision or facts from which a collision could be inferred by a jury does not make out a prima facie case of negligence. The doctrine or maxim res ipsa loquitur is not applicable. Conover v. Delaware, etc., R. R. Co., 92 N. J. Law, 602, 106 Atl. 384.

To establish a case of negligence and fix the liability of the defendant, it is incumbent upon the plaintiff to prove some fact which is more consistent with negligence of the defendant than with the absence of it. Toomey v. London, etc., Ry. Co., 3 C. B. N. S. 150.

When the plaintiff's evidence is equally inconsistent with the absence as with the existence of negligence on the part of the defendant, the plaintiff must fail (Cotton v. Wood, 8 C. B. N. S. 568), because there is always a presumption against negligence and in favor of innocence (Philadelphia, etc., R. R. Co. v. Hummell, 44 Pa. 375, 84 Am. Dec. 457). A probability is not sufficient. Searles v. Manhattan Ry. Co., 101 N. Y. 661, 5 N. E. 66.

Turning to the application of these elementary legal principles to the facts of the case in hand, we find the record reveals these undisputed facts: The charge laid in the complaint is the defendant company on the 3d day of July, 1919, at the corner of the Boulevard and Williams avenue in the borough of Hasbrouck Heights, N. J., negligently caused its trolley car to collide with a motorcycle, in the side car of which the decedent was riding, thereby causing his death. No one testified at the trial to having seen or heard any collision. The conductor and motorman were not called as witnesses. The only evidence that the decedent was riding in the side car of the motorcycle was that of his wife, who testified that she saw him get into the side car before leaving Lodi about 7:30 p. m. A half hour later she heard of the injury to him. He died the same night in the hospital. The plaintiff produced three witnesses besides the decedent's wife and a doctor; the defendant, one witness. Helen Glindmeyer, who lived about 100 feet from the corner of Williams avenue, testified she saw a motorcycle being driven along Williams avenue in a westerly...