Consol. Traction Co. v. Glynn

• Decision Date: 10 March 1897
• Citation: 59 N.J.L. 432,37 A. 66
• Parties: CONSOLIDATED TRACTION CO. v. GLYNN.
• Court: New Jersey Supreme Court

37 A. 66

59 N.J.L. 432

CONSOLIDATED TRACTION CO.

v. GLYNN.

Court of Errors and Appeals of New Jersey.

March 10, 1897.

(Syllabus by the Court.)

Error to circuit court, Essex county.

Action by John Glynn against the Consolidated Traction Company. From a judgment for plaintiff, defendant brings error. Affirmed.

Depue & Parker, for plaintiff in error.

Saml. Kalisch, for defendant in error.

VAN SYCKEL, J. Error is assigned upon the refusal of the trial court to nonsuit the plaintiff below, who is the defendant in error. He was run over by an electric car in April, 1894, while crossing Market street at Frederick street, in the city of Newark, on foot The evidence on the part of the defendant company was that the motorman saw the plaintiff leave the curbstone, and supposed from the conduct of the plaintiff that he intended to get on the car, and that, when the car was within five or six feet of him, he stepped in front of it and was run down. If these had been the admitted facts, the motion to nonsuit should have prevailed; but the testimony on the part of the plaintiff was that he saw the car at Fillmore street, a distance of more than 300 feet from where he was struck; that he waited two or three seconds, and then proceeded to cross the street without looking again for the approaching car, and was struck before he succeeded in crossing the tracks. It must be assumed that the jury found the facts to be as testified to on the part of the plaintiff, and the case must be passed upon in that aspect.

It has been repeatedly declared in this court that the company must run its cars with such care, and at such a rate of speed, that other persons, either on foot or in vehicles, may use the street in safety, provided they exercise reasonable care for their own protection. The company had no right to propel its cars at such a rate of speed as was incompatible with the safe and customary use of the street by others who have equal rights with the company upon it. It was therefore a question of fact for the jury to settle whether the plaintiff, in the exercise of reasonable prudence and caution, should have apprehended that the car was coming at so high a rate of speed that it would reach him before he cleared the tracks, and to determine whether a prudent man, with the right to presume that the company would exercise due care on its part would have proceeded to cross the street under the circumstances presented on behalf of the plaintiff. Contributory...