Connelly v. Trenton Pass. Ry. Co., Consol.

• Decision Date: 18 June 1894
• Citation: 29 A. 438,56 N.J.L. 700
• Parties: CONNELLY v. TRENTON PASS. RY. CO., CONSOLIDATED.
• Court: New Jersey Supreme Court

29 A. 438

56 N.J.L. 700

CONNELLY

v. TRENTON PASS. RY. CO., CONSOLIDATED.

Court of Errors and Appeals of New Jersey.

June 18, 1894.

(Syllabus by the Court.)

In error to supreme court.

Action by Cecilia Connelly against the Trenton Passenger Railway Company, Consolidated. Judgment for defendant, and plaintiff brings error. Reversed.

J. H. Backes, for plaintiff in error. J. Buchanan, for defendant in error.

GARRISON, J. This is a suit for damages for personal injuries. The plaintiff was a pedestrian on Clinton street, in the city of Trenton. While in the act of crossing the tracks of the defendant company on that highway, she was struck by one of its cars propelled by electricity. After the plaintiff and some of her witness had testified, the question was asked by the trial judge, "Is there any other testimony which will vary the testimony now in on this point?" which being answered in the negative, the court proceeded to dispose of the question of contributory negligence, using this language: "Then I will, for the purpose of this case, put on record that there is other testimony which the plaintiffs are prepared to offer in corroboration of what has already been given in reference to the accident, and also testimony in reference to the damages, and then I will hear counsel for the defendant on a motion for a nonsuit on the ground of contributory negligence, and hear what both sides have to say."

Counsel for the plaintiff then said: "I omitted to prove the approximate loss of time in stops. I want to prove fifteen minutes' loss of time, in order to bring it down to thirty-nine minutes, to justify the forty-eight seconds on the map. Fifteen minutes is used up in taking on and leaving off passengers." To which the court replied: "I will hear the motion to nonsuit on the ground of contributory negligence."

After argument the case was disposed of in these words, "I order a nonsuit on the ground that it was the duty of the plaintiff, in the position she was on that track, to have looked to see if this motor car was coming. Having failed to do it, she is guilty of contributory negligence, and therefore cannot recover."

From this colloquy between court and counsel, as well as from the circumstances that the argument on the nonsuit was brought on before the plaintiff had closed her case, the only ground upon which the ruling can rest is that of the plaintiff's contributory negligence. Apart from the circumstances detailed, there was in the case, as it stood, competent testimony from which the negligence of the defendant might have been found by the jury. Thus, there was evidence that the car was running as fast as it could, with its warning gong not in working order. The fact that the motorman ran his car onto a person standing on the track, in the situation in which the plaintiff testifies that she was, is also competent proof upon the question of ordinary care in the use of a public highway. I shall assume that the only question in the case is whether the plaintiff was, upon her own showing, guilty of contributory negligence.

The facts actually or inferentially before the court were these: The plaintiff, a middle-aged woman, carrying a number of bundles, started to cross Clinton street, in the daytime, at a public crossing nearly opposite to the point at which Jefferson street opens into it. To the left the view of the street was open to her as far as Perry street, around the corner of which, afterwards, came the car...