Brady v. Consol. Traction Co.

• Decision Date: 27 February 1899
• Citation: 42 A. 1054,63 N.J.L. 25
• Parties: BRADY v. CONSOLIDATED TRACTION CO.
• Court: New Jersey Supreme Court

42 A. 1054

63 N.J.L. 25

BRADY

v. CONSOLIDATED TRACTION CO.

Supreme Court of New Jersey.

Feb. 27, 1899.

(Syllabus by the Court.)

Action by William Brady against the Colsolidated Traction Company. Verdict for plaintiff. Rule to show cause why a new trial should not be granted, Rule made absolute.

Argued November term, 1898, before the CHIEF JUSTICE and GARRISON and DIXON, JJ.

George G. Tennant, for plaintiff.

Abram Q. Garretson, for defendant.

DIXON, J. In this case the plaintiff sued to recover compensation for injuries resulting from a collision with a car of the defendant in December, 1897. He having obtained a verdict, the trial justice allowed a rule to show cause why the verdict should not be set aside. The testimony shows that between 3 and 4 o'clock in the afternoon, as the car was going up Newark avenue, in Jersey City, on the northerly track, the plaintiff, a boy about 9 1/2 years old, playing with other boys, ran down the avenue on the southerly side, and then across the avenue in front of the car, where he was hit by the northerly corner of the fender. He heard the gong of the car ringing, and saw the car coming, while he was still in a place of safety. Under these circumstances there can be no doubt that, if he had been of full age, he would be chargeable with contributory negligence, and the only question is whether his youth should exonerate him from that charge. The question of negligence in persons of immature age is almost always one for the determination of the jury. It was held to be such in West v. Transportation Co., 32 N. J. Law, 91, Id., 33 N. J. Law, 430, and in Traction Co. v. Scott, 58 N. J. Law, 682, 34 Atl. 1094; but the language of the opinion in Railway Co. v. Flanagan, 57 N. J. Law, 696, 32 Atl. 216, indicates that it is not always so. In the two cases first named the alleged negligence consisted in the child's failure to infer the probable existence of a danger not apparent to his senses, while in the case now before us the dangerous proximity and movement of the car were actually perceived by the plaintiff. As was said in Railroad Co. v. Ewan, 55 N. J. Law, 574, 576, 27 Atl. 1064; "There is a substantial difference between being surprised by an unforeseen peril and being overtaken by one apprehended and recklessly incurred." This difference is of special importance in dealing with children, for to expect a danger where none is seen requires a larger experience, and the exercise of abler deductive faculties, than...