Consol. Traction Co. v. Lambertson

• Decision Date: 09 November 1896
• Citation: 36 A. 100,59 N.J.L. 297
• Parties: CONSOLIDATED TRACTION CO. v. LAMBERTSON (two cases). SAME v. HOIMARK.
• Court: New Jersey Supreme Court

36 A. 100

59 N.J.L. 297

CONSOLIDATED TRACTION CO.

v. LAMBERTSON (two cases).

SAME

v. HOIMARK.

Supreme Court of New Jersey.

Nov. 9, 1896.

(Syllabus by the Court.)

Error to circuit court, Essex county; Childs, Judge.

Actions by Charles Lambertson, Julius Lambertson, and Peter Hoimark against the Consolidated Traction Company. Judgments for plaintiffs, and defendant brings error. Affirmed.

The record and bills of exception disclose that the action of Lambertson, as plaintiff below, was brought to recover damages for an injury sustained by him as the result of a collision between a car of the Consolidated Traction Company, the defendant below, and a wagon driven by Lambertson, which occurred in Broad street, in the city of Newark.

Argued June Term, 1896, before the CHIEF JUSTICE, and GARRISON, LIPPINCOTT, and MAGIE, JJ.

Depue & Parker, for plaintiff in error.

Samuel Kalisch, for defendant in error.

MAGIE, J. It is first argued that error appears in the refusal of the trial judge to nonsuit the plaintiff below. The claim is that, upon the evidence given by Lambertson, he was so clearly guilty of negligence contributing to his injury that the case should have been taken from the jury. Lambertson's narration of the occurrence may be summarized thus. He was driving in a public street, on which the trolley cars of the traction company ran, and turned his horse to cross one of the company's tracks, although he saw a car coming towards him, "as fast as it could," upon that track; the car being, when he started to cross, about 300 feet away. Although he had but a short distance to traverse, and his horse was going on a "little trot," the car struck his wagon between the front and hind wheels. The contention is that Lambertson, before attempting to cross the track, must have seen that the car was being driven recklessly, and at an excessive and illegal rate of speed, and that it was as imprudent to attempt to cross in front of it as it would have been to attempt to cross in front of a team of runaway horses. But the comparison is inapt, and it is plain that if the jury believed Lambertson's story of the occurrence, there was a question for them in respect to his prudence or imprudence in crossing the track. The rights of Lambertson and the traction company to use the street for the passage of their respective vehicles were exactly the same, with a single exception. Because the cars of the company cannot deviate from the tracks, other vehicles must give way to them when there is occasion for them to pass. But neither Lambertson nor the company could drive their vehicles at a rate of speed incompatible with the safe and customary use of it by other vehicles or by foot passengers. Whether or not it must necessarily be inferred, from Lambertson's statement that the car was moving "as fast as it could," that he must have known it was being run in an illegal manner, may, perhaps, be doubted. But, assuming such an inference must be drawn, it does not necessarily follow that he should have concluded that the car would continue to be driven in the same way. He who puts himself in the way of runaway horses who have escaped from the driver's control must know that he is taking a risk. But a jury may well say that he who crosses in front of a trolley car, provided with a motorman, may assume that it is furnished with the means of stopping or reducing speed. Then there was a question for the jury, in this case, whether a prudent man, upon such an assumption, might not judge it safe to cross in front of a trolley car 300 feet away, although coming at great and illegal speed. Upon the assumption of the existence of means to reduce speed and to stop, and of a servant employed to make use of such means, it would be absurd to say that one was bound to refrain from crossing for fear the servant would not make use of the means.

It is next argued that the trial judge erred in refusing to give such instructions as were requested in respect to the evidence of two medical experts who were witnesses in the cause. It was not contested that these witnesses were qualified to testify as experts. They were called by Lambertson, and permitted to express an opinion in respect to the probable duration of the suffering and disability which he claimed...