Consol. Traction Co. v. Haight

• Decision Date: 08 March 1897
• Citation: 37 A. 135,59 N.J.L. 577
• Parties: CONSOLIDATED TRACTION CO. v. HAIGHT.
• Court: New Jersey Supreme Court

37 A. 135

59 N.J.L. 577

CONSOLIDATED TRACTION CO.

v. HAIGHT.

Court of Errors and Appeals of New Jersey.

March 8, 1897.

(Syllabus by the Court)

Error to supreme court.

Action by Albert Haight against the Consolidated Traction Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Depue & Parker, for plaintiff in error.

Samuel Kalisch, for defendant in error.

DAYTON, J. September 8, 1894, an electric car of the Consolidated Traction Company, going along Henderson street, in Jersey City, collided with the rear part of a truck moving ahead of it. The collision threw down Albert Haight, who was riding on the truck, causing him damages, for which suit was brought against the company in the Essex circuit. The assignment of errors in the trial, to which the attention of this court is directed, embraces that of a refusal to nonsuit, and a large number of objections to the charge of the presiding judge. It is clear that the court below did not err in refusing a nonsuit. There was conflicting testimony as to negligence, in the occurrence, both of the defendant and the plaintiff, which evidence it was exclusively the province of the jury to consider and determine upon. The only question remaining to be decided by this court is whether the judge, at the trial, correctly stated to the jury the law, or refused, upon request of counsel, to state all the law applicable to the ease.

A judge is not required to charge every abstract legal principle which may be suggested by counsel, unless applicable to the facts appearing in evidence. Nor is a judge required to adopt the form or the words, or the collocation of phrases, in which a request to charge is framed; and on a request embracing several distinct legal propositions, if any one of the set be improper, a general exception to the refusal to charge will be unavailable. Gardner v. State, 55 N.J.Law, 17, 26 Atl. 30; Traction Co. v. Chenowith (N.J.Err. & App.; Nov. 16, 1896) 35 Atl. 1067.

Carefully examining each one of the 20 assignments of error alleged to have occurred in the charge of the judge, we are unable to find any one of them sufficiently supported. The charge, considered as a whole, and not by mere excerpts separated from their surroundings, stated the law applicable to the facts clearly and comprehensively.

The errors upon which counsel for the defendant seem chiefly to rely are, first, that stated in the twenty-second assignment, which objected to the charge of the judge that if the truck was visible upon the track from a distance of 500 or 600 feet, being subjected to the risk of danger, it was the duty of the motorman to use all means in his power to bring the car to a standstill. But this statement must be considered in connection with the subsequent application of the law, that "if it appears as the result of the evidence in this case that, immediately upon discovering the wagon or truck of the plaintiff approaching the tracks, the motorman in charge of this car did apply his brakes, and did make every effort to prevent a collision, then the company is without fault." There was nothing in the above statements to mislead the minds of the jury. It was simply that at whatever distance from the truck, whether 600 or 60 feet, if the truck was visibly subjected to risk of injury by further advance, it was the duty of the motorman to make every effort to stop his car. Many elements must be considered to determine the risk, as, for instance, the speed of the car; the condition of the tracks; the efficiency of the brakes, or the reverse, upon the car. It would be a strained construction of such a phrase to understand that whenever, and under...