City Ry. Co. v. Lee

• Decision Date: 31 July 1888
• Citation: 50 N.J.L. 435,14 A. 883
• Parties: CITY RY. CO. v. LEE.
• Court: New Jersey Supreme Court

14 A. 883

50 N.J.L. 435

CITY RY. CO.

v. LEE.

Court of Errors and Appeals of New Jersey.

July 31, 1888.

Error to circuit court, Mercer county; before Chief Justice BEASLEY.

Action for personal injuries, brought by William H. Lee against the City Railway Company. Judgment for plaintiff, and defendant brings error.

H. N. Barton and Barker Gummere, for plaintiff. Buchanan & Robbins, for defendant.

KNAPP, J. The plaintiff below became a passenger on an open car of the defendant company, which at the time had passengers on board in number sufficient to occupy all the seats. When the plaintiff was invited to go on board the car, there was no other room than a standing place on the running board along the side of the car. Other passengers stood upon the running board of the same as well as the other side of the car. At the point where the plaintiff embarked there was but a single track. Further on in the direction the car was traveling the track was double. A car of like form on the other track, and carrying passengers upon the running board, met the car which carried the plaintiff. The space between the two cars was not sufficient to permit persons to pass with safety standing upon the inner running boards of the passing cars, and in the passage of these cars the plaintiff was thrown by contact with a passenger standing on the running board of the other car, and was injured. For this, suit was brought, and the plaintiff recovered damages. To reverse the judgment this writ of error is brought.

The bill of exceptions sealed and sent with the record in this case presents the question whether the trial court erred in law in refusing to nonsuit the plaintiff at the close of his case in response to the request of the defendant. The suit was for negligent injury to the plaintiff below, (the defendant here,) received by the defendant while a passenger on a car of the plaintiff, being transported over its line. It is not contended seriously that, at the close of the defendant's case, there was not evidence to go to the jury in support of the averred negligence of the company. The ground relied upon in the defendant's defeat was that he, by his own carelessness, materially contributed to his own injury, and that this appeared in the evidence in his own behalf. There is no doubt as to the legal rule that negligence on the part of a plaintiff such as contributes to the injury of which he complains, when discovered through his own testimony, will preclude his right of recovery. Railroad Co. v. Moore, 24 N. J. Law, 268,824; Runyon v. Railroad Co., 25 N. J. Law, 556; Brake v. Mount, 33 N. J. Law, 441; Railroad Co. v. Matthews, 36 N. J. Law, 531; Railroad Co. v. Toffey, 38 N. J. Law, 525. And it is also settled that a refusal of the court to nonsuit on request, where such ground exists for the motion, is legal error. Railroad Co. v. Ward, 47 N. J. Law, 560, 4 Atl. Rep. 331. Whether, then, the court was wrong in its refusal to nonsuit must depend on the existence in the testimony of such proof of fault and imprudence on the part of the defendant exposing him to injury as in the eye of the law is culpable. If the testimony left that question in doubt, it was for the jury, and not the court, to determine. To determine this, the facts which are not in dispute must be adverted to. The defendant was riding upon an open car drawn by two horses. When he was invited to enter, the seats and platform of the car were filled, and he was obliged to take his place, with others, on the foot-board, running longitudinally with the car. The roof of the car was supported by stanchions or posts, opposite to one of which the defendant placed himself. At the point where he entered this car the company had but a single track. Further on the track was double, with a space of two feet eleven inches between the nearest rails of the two tracks. Two cars of the sort the defendant was riding on, passing each other on this double track, would be separated by about ten inches along the edges of the two nearest foot-boards, which foot-boards were about nine inches wide each. A person might stand on one foot-board, and pass a car on the other track, without...