Brady v. Consol. Traction Co.

• Decision Date: 26 February 1900
• Citation: 45 A. 805,64 N.J.L. 373
• Court: New Jersey Supreme Court
• Parties: BRADY v. CONSOLIDATED TRACTION CO.

45 A. 805

64 N.J.L. 373

BRADY

v. CONSOLIDATED TRACTION CO.

Supreme Court of New Jersey.

Feb. 26, 1900.

(Syllabus by the Court.)

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

Argued November term, 1899, before MAGIE, C. J., and DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Queen & Tenant, for plaintiff.

Vredenburgh & Garretson, for defendant.

MAGIE, C. J. A verdict in favor of plaintiff on a previous trial was set aside by this court. Brady v. Traction Co. (N. J. Sup.) 42 Atl. 1054. From the opinion of Mr. Justice Dixon it appears that plaintiff's evidence then disclosed that a boy of about 9 1/2 years old ran across a crowded public street, and was struck and injured by a trolley car, which he saw approaching while still in a place of safety. The verdict was set aside on the ground that the danger of being struck by the car was observed by the plaintiff, and that it was a danger which a boy of his years could fully appreciate, and therefore, when he chose to cross, he took the risk of failing. In the case now before us it appears that the plaintiff has obtained a verdict on a second trial of the Issue, and defendant prosecutes this rule to show cause why it should not be set aside.

The evidence given by plaintiff on the second trial is in absolute contradiction of that given by him on the previous trial. Before, he repeatedly swore that he heard the gong of the car ring, and saw the car approaching, before he went on the track. Upon this trial he swore that he neither heard the car nor the gong, and that he did not see the car until he was struck. He admitted that he had sworn differently at the former trial, and gave as the only reason that he did not understand.

The plaintiff was a foot passenger crossing a street containing a car track. A duty devolved upon him before crossing to use his powers of observation to observe approaching cars which are within a distance, if run at lawful speed, to put him in danger. Railway Co. v. Block, 55 N. J. Law, 605, 27 Atl. 1067. Such a duty devolved upon an intelligent youth who was sui juris, as plaintiff is admitted to be. Sheets v. Railway Co., 54 N. J. Law, 518, 24 Atl. 483; Railway Co. v. Flanagan, 57 N. J. Law, 696, 32 Atl. 216. The duty of observation required from children may differ in extent and degree from that required from an adult. Judgment which a jury might find...