Bergmann v. Pub. Serv. Ry. Co.
| Decision Date | 05 March 1923 |
| Parties | BERGMANN v. PUBLIC SERVICE RY. CO. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Circuit Court, Union County.
Action by Selma Bergmann, administrar trix, against the Public Service Railway Company. From a judgment of nonsuit, plaintiff appeals. Reversed, and venire de novo awarded.
Ralph E. Lum, of Newark, for appellant.
Leonard J. Tynan, of Newark, for respondent.
This ease was tried at the Union circuit and the plaintiff recovered a verdict which the Supreme Court, on a rule to show cause, set aside, upon the ground that the preponderance of the evidence tended to show that the plaintiff's intestate was guilty of contributory negligence. The case was remanded for a new trial, and, by agreement, the testimony in behalf of the plaintiff at the first trial was read in evidence, and thereupon the trial court, assuming that the action of the appellate court in making the rule to show cause absolute amounted to holding that there should have been a nonsuit on the ground of contributory negligence, called the plaintiff, and directed that a Judgment of nonsuit be entered, and that action is the ground of the present appeal.
The evidence on behalf of the plaintiff showed that the decedent was crossing the trolley tracks of the defendant on a line with a street called Dalton avenue, for the purpose of reaching the other side of the trolley track on Westfield avenue, along which the trolley tracks of the defendant ran; that as he was about to cross the tracks, the trolley car approaching about 60 feet away, he held up his hand to give the motorman notice that he wished to board the approaching car and then proceeded to cross, the track, but was struck by the car just as he was about leaving the track, the collision resulting in his death; that Dalton avenue was a stopping point of the trolley cars, there being a sign standing there notifying the public that cars stopped at that street; that the trolley car was being run at about 20 miles an hour; that it had no headlight burning, and that the motorman was not looking at the crossing but had his head down with his eyes towards the floor, and might not have seen the notice which the deceased gave by holding up his hand. Under the testimony on behalf of the plaintiff, we think it was a jury question both as to the negligence of the plaintiff, and the contributory negligence of the deceased. As was said in Danskin v. Pennsylvania R. Co., 79 N. J. Law, 526, 76 Atl. 975:
"In view of the presumption of due care upon the part of the decedent, we are of the opinion that this evidence left the question of his contributory negligence in doubt, and, in such case. it was for the determination...
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Bergquist v. Penterman
...he used due care for his own safety. Tate v. Costa, 29 N.J.Super. 527, 531, 103 A.2d 16 (App.Div.1954); Bergmann v. Public Service Ry. Co., 98 N.J.L. 487, 488, 120 A. 193 (E. & A.1923). It is also well settled that in order to justify dismissal of an action upon the ground of contributory n......
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Shutka v. Pennsylvania R. Co., A--742
... ... Danskin v. Pennsylvania R. Co., 79 N.J.L. 526, 529, 76 A. 975 (E. & A. 1910); Bergmann v. Public Service Railway Co., 98 N.J.L. 487, 120 A. 193 (E. & A. 1923); Bergquist v. Penterman, ... ...
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Jurman v. Samuel Braen, Inc.
...the presumption was mentioned and used in rejecting an attack upon the sufficiency of the evidence are: Bergmann v. Public Service Railway Co., 98 N.J.L. 487, 120 A. 193 (E. & A.1922); Lambert v. Emise, 120 N.J.L. 164, 199 A. 44 (Sup.Ct.1938); Tate v. Costa, 29 N.J.Super. 527, 531, 103 A.2d......
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McGuiggan v. St. Paul City Ry. Co., 34702.
...in the exercise of ordinary care it was apparent to him that it would not so stop.’ Bergmann v. Public Service Ry. Co., 98 N.J.L. 487, 120 A. 193;Courtney v. Public Service Ry. Co., 96 N.J.L. 308, 115 A. 740;Unterlachner v. Wells, 317 Mo. 181, 296 S.W. 755;Lackey v. United Rys. Co., 288 Mo.......