Consol. Traction Co. v. Thalheimer

• Decision Date: 01 March 1897
• Citation: 37 A. 132,59 N.J.L. 474
• Parties: CONSOLIDATED TRACTION CO. v. THALHEIMER et ux.
• Court: New Jersey Supreme Court

37 A. 132

59 N.J.L. 474

CONSOLIDATED TRACTION CO.

v. THALHEIMER et ux.

Court of Errors and Appeals of New Jersey.

March 1, 1897.

(Syllabus by the Court.)

Error to circuit court, Essex county.

Action by Albert Thalheimer and wife against the Consolidated Traction Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Joseph Coult, for plaintiff in error.

Samuel Kalisch, for defendants in error.

MAGIE, J. The judgment in this case was recovered by Albert Thalheimer and his wife against the Consolidated Traction Company, for damages sustained by each of them from an injury to Mrs. Thalheimer, for which the jury found the traction company to be liable. The questions raised by the assignments of error can all be considered under the assignment which challenges the correctness of the refusal of the trial judge to nonsuit the plaintiffs below. When the motion to nonsuit was made, the only evidence of the liability of the traction company was that given by Mrs. Thalheimer. If believed, the evidence established the following facts: That Mrs. Thalheimer was a passenger in a street car operated by the traction company, and running upon Orange street, in the city of Newark; that she notified the conductor of the car that she desired to alight therefrom at Fifth street (which crossed Orange street); that, when the car approached Fifth street, the conductor called out the name of that street; that she got up from her seat, while the car was still in motion, and walked to the rear door of the car, which was open, and when she arrived at the door, and was just coming out of it, she Was thrown into the street by a movement of the car, which she called a "lurch" or a "jerk," and described as of sufficient force to "throw her right off." The fall produced serious injury. The motion to nonsuit was put upon two grounds: (1) That the evidence failed to show any breach of the duty which the traction company owed to its passenger, Mrs. Thalheimer; and (2) that, if such breach of duty could be inferred, the evidence disclosed that she had contributed to her injury by her own negligence.

After the motion was denied, the traction company gave evidence which, if believed, showed that Mrs. Thalheimer fell upon the street after she had safely alighted from the car, and which might justify the inference that her fall was due to the inequalities of the surface of the street, which was paved with cobble stones. Upon an application for a new trial, a serious question would be presented as to the weight of this conflicting testimony; but upon error the weight of testimony...