Connolly v. Pub. Serv. Ry. Co.

• Decision Date: 01 March 1920
• Docket Number: No. 54.,54.
• Citation: 109 A. 507
• Parties: CONNOLLY v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

109 A. 507

CONNOLLY

v. PUBLIC SERVICE RY. CO.

No. 54.

Court of Errors and Appeals of New Jersey.

March 1, 1920.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Action by Annie Connolly, administratrix, etc., against the Public Service Railway Company. Verdict and judgment for defendant, and plaintiff appeals. Affirmed.

Benjamin M. Weinberg, of Newark, for appellant.

Lefferts S. Hoffman and Leonard J. Tynan, both, of Newark, for respondent.

PARKER, J. The plaintiff's decedent, while crossing Bloomfield avenue, Newark, on foot, came into collision with a car of the defendant company running on that avenue, and sustained injuries from which he died. The plaintiff, as his administratrix, brought suit alleging negligence on the part of the defendant company. The case went to the jury which returned a verdict for the defendant, and from the judgment rendered on that verdict this present appeal is taken. The printed case does not exhibit any of the testimony or other evidence taken on the trial, and the errors alleged are predicated solely upon the judge's charge. In the absence of any of the testimony submitted, we, of course, are unable to determine what conclusions of fact the jury were entitled to draw, and we have no knowledge of the circumstances of the accident, except so far as portions of the charge may throw some light thereon.

The first point made is that the trial judge erred in instructing the jury that there is no speed limit for trolley cars in New Jersey, and that a trolley car may be operated at any speed consistent with the safety of the passengers and with the safety of pedestrians and others on the street. Appellant's counsel is correct in saying that the trial judge plainly overlooked the provisions of paragraph 5 of the so-called Traffic Act of 1915 (P. L. p. 290), where the limit of speed is prescribed in localities where the houses are on the average more than 100 feet apart, and on page 296, paragraph 27, where it is laid down that no street car shall be operated at a greater speed than 15 miles per hour in places where the houses are on the average of less than 100 feet apart, provided the tracks on which such street car is operated are laid upon any public street. The judge gave instructions with respect to the general duty of care to be exercised by the motorman of a street car which, as a matter of common law, are unexceptionable, and the question is whether this judgment should be reversed because of his statement to the jury that there was no speed limit for trolley cars, etc. In determining this question, it should be borne in mind that the judge was speaking to a particular case; that section 27 of the Practice Act of 1912 provides that—

"No judgment shall be reversed * * * on the ground of misdirection, * * * unless, after examination of the whole case, it shall appear that the error injuriously affected the substantial rights of a party." P. L. 1912, p. 382.

We are unable to say that this error injuriously affected the rights of the plaintiff. There is nothing in the case before us to show that the trolley car was moving at any speed in excess of the statutory rate, and if there were no such evidence it was quite immaterial whether the judge erroneously instructed the jury with respect to the statute or not. No case, therefore, is made for a reversal on this ground.

The next point presented is stated in the brief of counsel as follows:

That the court, after defining the duty of the motorman, by way of illustration, referred to certain testimony in the cause, as follows: "To illustrate, if, as Farley, the motorman, says, Mr. Connolly was 3 feet from the curb and walking toward the track when the car was 10 feet from him, and continued to walk directly in front of or into the side of the car, and thus received his injuries, these injuries were not the result of negligence on the part of the motorman, for the motorman was in the exercise of due care as before stated."

The objection made to this is twofold: First, that it did not permit the jury to consider whether the motorman saw or should have seen Connolly when leaving or about to leave the curb, or whether the car at that time was traveling fast or slow, or whether the motorman then so controlled his car as to lead Connolly to believe that he would slow it down or even stop it; secondly, that the court took judicial notice of the fact that the motorman, while 10 feet away from Connolly, who was then 3 feet from the curb, was justified in going ahead without using any care whatsoever for the safety of the deceased. The whole point, however, is based fundamentally upon a mistake in printing the language of...