Consol. Traction Co. v. Behr

• Decision Date: 19 April 1897
• Citation: 59 N.J.L, 477,37 A. 142
• Parties: CONSOLIDATED TRACTION CO. v. BEHR.
• Court: New Jersey Supreme Court

37 A. 142

59 N.J.L, 477

CONSOLIDATED TRACTION CO.

v. BEHR.

Court of Errors and Appeals of New Jersey.

April 19, 1897.

(Syllabus by the Court.)

Error to circuit court, Essex county.

Action by Edith Behr against the Consolidated Traction Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Edith Behr, a girl of 19, accompanied her father to market on the night of September 9, 1895. Behr left his farm at 11 o'clock with two wagons loaded with marketing. The one in advance, in charge of Behr's son and two hired men, was followed by the one upon which the plaintiff rode, which was in charge of Behr himself. In this order the teams traversed the public road leading from Elizabeth to Newark; Behr walking by the side of his team; the plaintiff sleeping upon the wagon. This wagon and the extemporized bed upon which the plaintiff slept are described in the testimony. The box of the wagon was "not very wide, but on top there was a railing such that a peach basket fitted into it, and this made the top about three or four feet wider." The bed was made of boards laid over the baskets, upon which blankets were placed when they were taken off the horses. This was done that the girl might be rested when the market was reached. The highway was used by defendant company with its tracks. At a point about opposite to Trowbridge's Hotel the "knocking of a wheel" apprised Behr that a nut had dropped from one of the axles, to find which he went back, first calling to his son to stop. As Behr's wagon stood, the hind part of it was over the car track. "I thought to cross that track," was Behr's testimony, "but couldn't cross, because I see that the wheel falls down on one side." Behr found the nut, and was returning to his wagon when a car coming towards the teams escaped the first, but collided with the second, wagon, knocking it three or four feet off the track. By this collision the plaintiff, while still asleep, was thrown to the ground, and suffered injury, for which she recovered upon the verdict of a jury.

Joseph Coult, for plaintiff in error.

Samuel Kalisch, for defendant in error.

GARRISON, J. (after stating the facts). The question of contributory negligence was submitted to the jury by the trial court in these words: "The only question is, does the evidence satisfy you that the plaintiff was herself negligent? The evidence is that the plaintiff, shortly after leaving her house, made use of a bed— to use that term— which had been provided for her on top of this wagon, and there remained sleeping until the happening of the accident. Any act aside from that showing negligence on the part of the plaintiff I cannot recall. Was that a negligent act? The father had charge of the horse; was walking, driving the animal. Is there any evidence of negligence in that fact? If there is; if you find that the fact that the plaintiff went to sleep upon a wagon being driven along the public highway, with her father walking on the ground, having charge of the animals, and her brother and another man being immediately in advance; if the evidence satisfies you that that was negligence on the part of the plaintiff,— then, undoubtedly, it was an act contributing to the happening of this injury, and the plaintiff would not be entitled to your verdict. But unless you are so satisfied, under all the circumstances of the case, there would be nothing in that to disqualify the plaintiff from recovery."

No exception to the charge was taken; nor was the trial court at any time asked to make any ruling with respect to the negligence of the plaintiff in going to sleep. In fact, the case is barren of any mention whatsoever of the circumstance that the plaintiff was asleep, excepting as it appears in the language of the charge above given, where it was permitted...