Consol. Traction Co. v. Chenowith

• Decision Date: 20 February 1896
• Citation: 34 A. 817,58 N.J.L. 416
• Parties: CONSOLIDATED TRACTION CO. v. CHENOWITH.
• Court: New Jersey Supreme Court

34 A. 817

58 N.J.L. 416

CONSOLIDATED TRACTION CO.

v. CHENOWITH.

Supreme Court of New Jersey.

Feb. 20, 1896.

(Syllabus by the Court.)

Error to circuit court, Essex county; before Justice Depue.

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

Argued February term, 1896, before BEASLEY, C. J., and MAGIE, GARRISON, and DIXON, JJ.

Frederick W. Stevens, for plaintiff in error.

Hayes & Lambert, for defendant in error.

BEASLEY, C. J. The plaintiff contends that, while he was driving a truck belonging to the fire department of the city of Newark, he was run into by one of the trolley cars of the defendant, and thereby sustained severe personal injury. The jury rendered a verdict for the plaintiff, and the company now seeks, on this writ of error, to avoid the judgment that ensued upon such finding.

The errors assigned grow out of the refusal of the trial judge to charge the jury in accordance with certain requests of the counsel of the defendant The legal propositions so rejected related, in the main, to the conduct that, as it was deemed, it was necessary for the plaintiff to have pursued on the occasion of the accident, in order that he should be absolved from the imputation of contributory negligence. It is not denied, nor could it be denied, that the judicial instruction to the jury on this subject was in all respects unobjectionable. But the complaint is that the judge refused to particularize as to what the plaintiff was bound to do under the admitted conditions of the case. As exceptions of this character are becoming quite common, it will not be time misspent to state with some fullness the circumstances of the case, in order to show the ground on which the instructions asked for were denied by the court.

The charge upon this topic was in these words, viz.: "In considering this question of contributory negligence, you must consider that the plaintiff was bound to exercise, under the given circumstances, that degree of care that an ordinarily prudent man, under like circumstances, would feel called upon to exercise. Now, what were the circumstances,— the circumstances as they appeared and as they were known to the plaintiff? He was familiar with the neighborhood. He had been in the performance of his duty in the neighborhood for some years. Upon Orang? street, at that time, to the knowledge of the plaintiff, there was being operated an electric railway. That was one of the circumstances existing at the time the plaintiff was called on to act. He knew the width of Orange street approximately, and he knew the width of Plane street approximately. He knew the length of his truck, the weight of his truck, and the difficulties of moving or removing it from any given spot Now, it was under these circumstances that the plaintiff attempted to cross the track of the defendant corporation The measure of the duty of the plaintiff in crossing a public highway, traversed by surface cars propelled by electricity, was to use such precaution and care for his safety as a...