Bauer v. N. Jersey St. Ry. Co.

• Decision Date: 04 March 1907
• Citation: 65 A. 1037,74 N.J.L. 624
• Parties: BAUER v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

65 A. 1037

74 N.J.L. 624

BAUER

v. NORTH JERSEY ST. RY. CO.

Court of Errors and Appeals of New Jersey.

March 4, 1907.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Anna Bauer against the North Jersey Street Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Benjamin M. Weinberg, for plaintiff in error. John A. Bernhard, for defendant in error.

FORT, J. The plaintiff is a young girl, and at the time of the injury for which this suit is brought she was 12 years of age. She was run down by a trolley car of the defendant company while upon the west cross-walk of Schalk street, crossing Bowery street, in the city of Newark. She was struck upon the head and was picked up and taken to the hospital, and her evidence, as to how the accident happened, naturally shows some confusion in her memory. There were other witnesses who saw it, however, whose testimony make the facts clear.

The car was running on Bowery street. On this street there are double tracks, east and west bound. As the girl was crossing she awaited the passing of an east-bound car. There is evidence that, when she started to cross, a west-bound car was approaching in full view, at a point which from the evidence was shown to be the distance of the width of Schalk street and two houses beyond, probably from 75 to 100 feet away. She undoubtedly saw the car, or could have seen it had she looked, and the motorman did see, or could have seen, her at the same distance. She was hit by the car just as she was about to leave the track she was crossing, upon which the car was. The proof was that the car was going fast. Witnesses testify that the car, after it hit her, was not stopped until it went three doors beyond the point where it hit her, a distance, probably, of 60 or 75 feet. She was carried on the fender, or some other way, by the car, for some distance—one witness says three doors from the crossing where she was hit. There was also evidence that the motorman did not ring any bell. On this evidence a motion to nonsuit on the ground that the motorman was without negligence was denied, and rightly, as we think. Zolpher v. Camden & Sub. Ry. Co., 69 N. J. Law, 417, 55 Atl. 249.

But a motion to nonsuit on the ground that the girl's own negligence contributed to the injury was granted. It is this direction to nonsuit that is here on writ of error. We think there was error in the granting of this motion. The child was upon the cross-walk, where she had the right to be, and where she had the right to rely upon the fact that the motorman of the car, as well as the drivers of all other vehicles, would respect her priority of right to cross the street if she was in position to justify her proceeding to cross, under a reasonable belief that she could do so with reasonable safety if both she and the motorman were in the exercise of reasonable care. Consolidated T. Co. v. Glynn, 59 N. J. Law, 432, 37 Atl. 66. Whether a person proceeding to cross at a cross-walk, who may see a car approaching, is in the exercise of reasonable care, is for the jury. Where reasonable minds may differ as to whether a person on foot who crosses a street when upon the sidewalk, in front of an approaching trolley car, was, under the given circumstances, guilty of an act of negligence which contributed to the injury, is always for the jury. A trolley car has no special right in the streets,...