Bergen County Traction Co. v. Heitman's Adm'r

• Decision Date: 21 June 1898
• Citation: 61 N.J.L. 682,40 A. 651
• Parties: BERGEN COUNTY TRACTION CO. v. HEITMAN'S ADM'R.
• Court: New Jersey Supreme Court

40 A. 651

61 N.J.L. 682

BERGEN COUNTY TRACTION CO.

v. HEITMAN'S ADM'R.

Court of Errors and Appeals of New Jersey.

June 21, 1898.

(Syllabus by the Court.)

Error to supreme court.

Action by Heitman's administrator against the Bergen County Traction Company. Verdict and judgment for plaintiff, and defendant brings error. Affirmed.

Thomas B. Harned, for plaintiff in error.

John P. Stockton, Jr., and Warren Dixon, for defendant in error.

VREDENBURGH, J. The plaintiff's administrator obtained a verdict and judgment on the trial of this cause before the supreme court circuit of Bergen county, against the traction company, for $1,000 damages, for causing the death of the plaintiff, a child of about two years and three months of age, who was run over by the company's car in the public highway. The question to which we are confined by the assignments of error upon the record is whether the trial court should have nonsuited the plaintiff, or, at the close of the evidence, have directed a verdict for the defendant. The age of the child excludes from the case the question of the contributory negligence of the deceased, as affecting the right of recovery; and the fact that an infant of such tender years was suffered to run in the public street unattended, and away from the custody or control of any guardian or caretaker, cannot excuse the company from liability for its negligence. This principle was decided in this state by the supreme court in the case of Newman v. Railroad Co., 52 N. J. Law, 446, 19 Atl. 1102. The court below left the question of the defendant's responsibility for the accident to the jury, upon the controlling point of the case, under the following instruction, viz.: "If the evidence satisfies you that the motor-man was running at an undue rate of speed, or failing to keep such a lookout as reasonable care required, and that the accident was occasioned by the cause, why, then, you will find your verdict for the plaintiff. If the evidence does not satisfy you upon that point, you will find your verdict for the defendant." Irrespective of the high rate of speed at which the plaintiff claimed that the circumstances showed the car was running at the time of the accident there was sufficient evidence to go to the jury as to the motor-man's negligence in failing to observe the children in the immediate front of his car until after he was warned by the shouting of a passenger sitting behind him in the car. The defendant's own witness, Henry Hodges (a car conductor in the employ of the company, but riding as a passenger that day), swears he saw, from his seat on the right side of the car, three children in front of the car, not two feet from the rail, and next to some bushes growing on that side of the car; that he (to use his own words) "hallooed at the motorman, and got off his seat, and he [the motorman] put the brake on and reversed the current, and it knocked me right back in my seat." I quote more fully from his testimony, as follows: "When the motor-man got around the curve, and got towards where these bushes were, I saw three children. I got up and hallooed at the motor-man. One of them came back, like as if something had made him scared at something. I could not tell what it was. He turned back, and ran right into the car. The other two ran away,—ran towards the house." The motorman who had charge of the car testified on the point relating to the stopping of the car in these words: "When first I seen the children, I put on the brake and reversed the car." So that it follows that he, though standing, did not see the children until after the passenger sitting behind him had seen them, and had had time to halloo at the motorman, and time to rise from his seat, into which he was afterwards knocked back by the reversal of the motion of the car when the electric current was reversed and the brake put on. Here was the lapse of precious moments of time before the motorman saw the children,—on the assumption, of course, that he tells the exact truth in stating that he reversed the current when he first saw the children. If he had been properly vigilant, standing at the front of the car, and looking in the direction of the track before him, he would have been able to have reversed the current at the very instant the children came in...