Consol. Traction Co. v. Scott

• Decision Date: 15 June 1896
• Parties: CONSOLIDATED TRACTION CO. v. SCOTT.
• Court: New Jersey Supreme Court

34 A. 1094

58 N.J.L. 682

CONSOLIDATED TRACTION CO.

v. SCOTT.

Court of Errors and Appeals of New Jersey.

June 15, 1896.

(Syllabus by the Court.)

Error to supreme court.

Action by Virginia A. Scott, administratrix of William Scott, deceased, against the Consolidated Traction Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Warren Dixon, for plaintiff in error.

Allan L. McDermott, for defendant in error.

HENDRICKSON, J. Virginia A. Scott, the defendant in error, brought suit in the supreme court against the Consolidated Traction Company, the plaintiff in error, in tort, for damages resulting from the death of her son, William Scott, a boy aged seven years and eight months, caused by being run over by a trolley car of the defendant below, in the city of Bayonne, on the 9th day of October, 1894. The suit was brought by the mother, as administratrix of the son, for the benefit of the next of kin, under the statute. The trial took place before Justice Lippincott and a jury in the Hudson circuit, and resulted in a verdict for the plaintiff below. The matters for review brought into this court are alleged errors of the trial judge upon exceptions taken below upon his refusing, at the close of the plaintiff's case, to call the plaintiff, and order a nonsuit, and also upon his refusal, at the close of the evidence on both sides, to direct a verdict for the defendant below, and also upon exceptions taken to the judge's refusal to charge as requested, and to portions of the charge as delivered.

The facts of the case as developed by the evidence of the plaintiff below, briefly stated, were that plaintiff's son William, in company with his brother Horace, aged nine years, were returning home from a store to which they had been sent, and, in so doing, were passing along the north side of Center street, in said city, in a westerly direction, and were about to cross Avenue C, along which the defendant was engaged in running an electric street railway with double tracks, running from Jersey City to Bergen Point. The general course of the railway was from north to south. As the boys neared the northerly crossing of Center street over Avenue C, a closed car, on its way to Jersey City, approached on the north-bound track, and stopped two or three feet north of the crossing, for the purpose of receiving and discharging passengers. While the car was so standing there, receiving passengers, the boys, with one other pedestrian, Mr. McFale, had reached the crossing in the rear of the standing car. Mr. McFale and the larger boy stopped; but the smaller boy, who was one or two feet back of them, walked onto the south-bound track, where he was struck by a car from Jersey City, and killed. Just before the car struck him, he was seen to make a sort of spring, as if to get out of the way, but it was too late. The standing car obstructed the vision of those behind it, from seeing an approaching car on the south-bound track. The south-bound car was traveling at the rate of 6' miles per hour, and had passed the rear of the standing car 7 or 8 feet before it struck the boy. The motorman at once reversed the car, which continued its motion to the south side of Center street some 30 or 40 feet before it was brought to a standstill. The witnesses heard no sound of bell or gong from the approaching car, and there was no evidence that the boy knew a car was approaching when he started to pass over from behind the standing car. The boy was familiar with the passing of cars to and fro on Avenue C, and had often passed over this crossing.

While these may not be all of the facts shown, I think they are sufficient upon which to fairly consider the legality of the judge's rulings at the trial. Upon the facts proved, the defendant moved that the plaintiff be nonsuited, on the ground that no negligence had been shown on the part of the defendant, and that contributory negligence had been proved on the part of the plaintiff's intestate. This motion the judge refused, and his refusal is now assigned for error. It is insisted in support of this assignment of error that the plaintiff below failed to establish any facts from which the jury would be justified in finding negligence on the part of the defendant. But this insistment is scarcely in accord with the well-settled rule regulating the action of the trial judge upon such a motion. It is not for him to say whether there are any facts proven in a given case from which the jury would be justified in finding negligence on the part of the defendant, but, rather, whether any facts have been established by evidence from which negligence might be reasonably inferred by a jury. As stated by Justice Magie in delivering the opinion of this court in Railway Co. v. Block, 55 N. J. Law, 005, 27 Atl. 1067: "In performing this function, the trial judge must take care not to trench on the peculiar province of the jury to determine questions of fact, and must bear in mind that the question is not whether he would infer negligence from the established facts, but whether negligence can be reasonably and legitimately inferred therefrom by the jury." In applying this general rule to the examination of the facts, it must be remembered that "negligence is not a fact which is the subject of direct proof, but an inference from facts put in evidence." "Now negligence," says Dr. Wharton, "may be disputed when the facts are undisputed; and the question in such case, where the dispute is real and serious, is eminently one for the jury, under the direction of the court." Whart. Neg. 3420. "Whether the facts are disputed or undisputed, if different minds might honestly draw different conclusions from them, the case should properly be left to the jury, and that, in order to withdraw such a case from the jury, the facts should not only be undisputed, but the inferences, in respect of the defendant's failure of duty, which arises from these facts, should be indisputable." 2 Thomp. Trials, 1208. This same doctrine has been repeatedly laid down by this court Bonnell v. Railroad Co., 39 N. J. Law, 189; Bahr v. Lombard, 53 N. J. Law, 233, 21 Atl. 190, and 23 Atl. 167; Baldwin v. Shannon, 43 N. J. Law, 596; Railroad Co. v. Shelton, 55 N. J. Law, 342, 26 Atl. 937; Railroad Co. v. Matthews, 36 N. J. Law, 531.

Can it be said, as a matter of law, that, upon the facts stated, there was no duty laid upon the defendant at this public crossing to so regulate the action of its cars, as to rate of speed, the giving of signals, or otherwise that pedestrians should be protected from unnecessary exposure to danger from collision with its passing cars? The counsel for the plaintiff in error, in his argument, admitted that the company might owe such a duty to a passenger who alighted from the north-bound car, and had passed behind it in making his exit, by reason of its contractual relations with the passenger. Indeed, it has been held that, in an action for injuries to plaintiff's intestate while crossing defendant's car track, negligence and contributory negligence are questions for the jury, where it appears that the intestate, on alighting from one of the defendant's cars, passed behind it, and attempted to cross the other track, when he was struck by an approaching car, which was running at its ordinary speed, and there is no evidence that any signal or warning of its approach was given. Dobert v. Railway Co. (Sup.) 36 N. Y. Supp. 105. In another case, an instruction that the care required of a street-car company to persons upon its tracks is not that high degree of care which it is required to exercise towards passengers was held to be incorrect when applied to a company running electric cars on city streets. Railway Oo. v. Dunlap (Tex. Civ. App.) 26 S. W. 877. It is well settled that, at crossings, street ears and pedestrians have equal rights to the use of the streets; and it has been held in that connection that what is proper care and precaution on the part of those in charge of cars to prevent accidents is a question of fact in each case. Schulman v. Railroad Co. (Super. N. Y.) 36 N. Y. Supp. 439. That such a duty towards pedestrians who are thus passing along the crossing of a public street traversed by a street-car company becomes chargeable to the latter is emphasized by the fact that such crossings are necessarily and legally frequented, by not only the adults, but by the children of a town attended or unattended by older people, and that such duty becomes more or less exacting, according to the circumstances of each case. The facts in the present case, to say the least, fairly raised a question for the jury whether the defendant was in the exercise of due and reasonable caution when it permitted its south-bound car to pass the standing car at that public crossing, and at such a rate of speed, under the circumstances. In forming a judgment upon that question, there were subsidiary questions, equally calling for consideration and judgment, such as: Was it the duty of the motorman, in the exercise of due and proper care, as he approached the standing car, which would obstruct his view of passengers or pedestrians who might be waiting to pass, to sound his bell or gong as a warning? And did he so sound his bell or gong? And should he have had his car under control at this crossing? And did he have it under such control when approaching the standing car? These facts and the inferences to be fairly drawn from them, under the principle before alluded to, it seems to me, clearly, were matters for the jury exclusively, and that the trial judge was right in so submitting them, and refusing to nonsuit.

The next ground of contention why the motion to nonsuit should prevail was because of alleged contributory negligence on the part of the plaintiff's intestate. But like the preceding ground, in order to give it the effect of requiring the court to arrest the trial, and take the matter from the jury, the...