Consol. Traction Co. v. Chenowith

• Decision Date: 16 November 1896
• Parties: CONSOLIDATED TRACTION CO. v. CHENOWITH.
• Court: New Jersey Supreme Court

35 A. 1067

61 N.J.L. 554

CONSOLIDATED TRACTION CO.

v. CHENOWITH.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1896.

(Syllabus by the Court.)

Error to supreme court.

Action by John B. Chenowith against the Consolidated Traction Company. Judgment for plaintiff. Defendant brings error. Affirmed.

For former report, see 34 Atl. 817.

Sherrerd Depue, for plaintiff in error.

Howard W. Hayes, for defendant in error.

McGILL, Ch. Error is assigned, in the first place, upon the refusal of the trial court to nonsuit the plaintiff below. The proofs exhibited that the plaintiff was the driver of a hook and ladder truck, belonging to the Newark Fire Department, which was drawn by two horses; that the distance from the front end of the pole, to which the horses were harnessed, to the rear end of the ladders, extending back of the truck, was 48 feet, and the weight of the truck, with its load, was about 7,060 pounds; that the driver's seat upon the truck was directly over the whiffletree, about 10 feet from the end of the pole; that under him was an alarm gong, which habitually was rung by him while the truck was in motion; that the truck was steered in front by the horses guided by the driver, and in the rear by a tillerman, who was seated back of the rear axle of the truck, at a wheel which was used by him to guide the back truck wheels; that the truck house was upon the westerly side of Plane street, 150 feet south of the intersection of Plane street with Orange street; that Plane street runs north and south, and Orange street runs east and west; that, about 150 feet west of Plane street, Orange street curves to the south, so that, from the southerly side of its intersection with Plane street, a person must advance into Orange street to see westerly beyond the commencement of the curve; that the roadway in Plane street is 30 feet wide, and the roadway in Orange street is 39 feet wide; that the sidewalk in Orange street is about 13 feet wide; that in the Orange street roadway two railway tracks of the defendant company are constructed, upon which the company operates cars by electric motors; that Orange street, where it crosses Plane street, is upon a grade which rises to the west, and descends to the east; that on the morning of the 18th of November, 1894, at about 8 o'clock, an alarm of fire was given, and the truck in question was driven by the plaintiff below, from its house, into Plane street, and thence northerly to Orange street, it being the driver's intention to turn westerly, and go up the last-named street; that the horses were driven slowly out of the truck house, and until the truck was straightened in Plane street, and then they were put to a trot to Orange street, slowing up, however, before they reached Orange street, to enable two firemen to get on the truck as it moved, between the front and back wheels; that the truck gong was repeatedly rung as the vehicle approached Orange street; that on the southwest corner of Orange and Plane streets, around which it was proposed to turn the truck, there was erected a three or four story brick building; that this building so obstructed the view up Orange street from Plane street that the driver of a vehicle in the latter street could not see the approach of an electric car from the west until he should nearly reach the cross walks at the intersection of the streets; that the plaintiff below, just after he crossed the cross walk, and when his horses were about upon the east-bound railway track, saw one of the defendant's cars approaching Plane street from the west, at a high rate of speed, estimated at 12 or 15 miles an hour, about 128 feet from him; that, as the momentum of his heavy truck was too great to enable him to stop before getting on the track, he immediately urged his horses to a higher speed, and pulled them to the right, to give the tillerman more room to swing the back part of the truck out of the way of the car, but, before the truck had cleared the track, it was struck by the electric car, and overturned, and the plaintiff was thrown from his seat, and severely and permanently injured; that the electric car was 32 feet in length, rested upon two trucks, each having four wheels, and was very heavy; that it was running rapidly, as stated, upon a descending grade; that it was equipped with double motors and brakes and alarm gongs, and its motive machinery could be reversed, in case of necessity, so that, when running upon a level and at a reasonable rate of speed, it could be stopped within its own length; and that its gong was not rung to indicate its approach towards Plane street.

The motion for nonsuit was based upon the insistence that the plaintiff below was guilty of contributory negligence. The argument in its favor is that the plaintiff knew the locality, the width of the streets, the existence of the electric railway, and the frequency of its cars, the location of the building upon the corner of Plane and Orange streets, and its obstruction of a view of the defendant's tracks to the west, and, by that knowledge, was chargeable with the realization that the intersection was a place of danger, the approach to which called for great care and caution upon his part, but that, notwithstanding this realization, he drove past the corner so fast that he could not check the momentum given to the truck until that vehicle was upon the defendant's track. It is insisted, as I understand the argument, that he should have so controlled the speed of his horses that he could have...