Daggett v. N. J. St. Ry. Co.

• Decision Date: 18 November 1907
• Citation: 75 N.J.L. 630,68 A. 179
• Parties: DAGGETT et ux. v. NORTH JERSEY ST. RY. CO. et al.
• Court: New Jersey Supreme Court

68 A. 179

75 N.J.L. 630

DAGGETT et ux.

v. NORTH JERSEY ST. RY. CO. et al.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1907.

(Syllabus by the Court.)

Error to Circuit Court, Essex County.

Action by John Daggett and Nellie Daggett against the North Jersey Street Railway Company and E. A. Williams. Judgment for plaintiffs, and defendants bring error. Affirmed.

John A. Bernhard and Hobart Tuttle, for plaintiff in error North Jersey Street Railway Company. John J. Hoppin and Harry V. Osborne, for plaintiff in error E. A. Williams. Harry Kalisch, for defendants in error.

TRENCHARD, J. This writ of error brings under review a judgment of the Essex circuit court in favor of the defendants in error, the plaintiffs below. The action was one of tort for negligence. Upon the trial there was evidence tending to prove the following facts: Nellie Daggett, wife of John Daggett, was a passenger on a trolley car of the North Jersey Street Railway Company, which was propelled along Bloomfield avenue, in the city of Newark, and which collided with a wagon of the other defendant company, E. A. Williams, at the corner of Bloomfield avenue and Parker street. The car was an open car, and the plaintiff sat in the first cross-seat inside the car with her back to the motorman. The plaintiff heard a crash, her head was thrown backward, and struck the woodwork of the car, and she was injured. The collision occurred in broad daylight, in a straight avenue. The car was moving on the southbound track. The wagon was approaching the car on the north-bound track. The driver of the wagon turned to cross the south-bound track for the purpose of driving into Parker street. There were no obstructions to the view of the two men who were charged with the management of the two vehicles. The motorman could see the driver and his wagon. The driver could see the motorman and his car; and each did see the other. The case was submitted to the jury, who found a verdict for the plaintiffs. The defendant the North Jersey Street Railway Company sued out a writ of error and the defendant E. A. Williams joined in the prosecution of the writ by virtue of the act of 1906, and has assigned errors in its own behalf.

The sole assignment of error relied upon by the defendant railway company is based upon the refusal of the learned trial judge to charge the jury specifically the following request: "That if the motorman of the car suddenly found himself, without any negligence on his part, in a dangerous position, and exercised a quick effort to stop the car, thereby causing the plaintiff's head to be thrown back, the company would not be liable." If the plaintiff's contention as to the state of the proofs is correct, there was no basis in the evidence for the hypothesis proposed by this request. If this be so, it, of course, was properly refused. But, whether this he so or not, we think it was properly refused. Reliance is placed by the railway company upon the case of Corkhill v. Camden & Suburban Ry. Co., 69 N. J. Law, 97, 54 Atl. 522. That case came before the Supreme Court on a rule to show cause, and there was no evidence to show any want of care in either motorman or conductor in attempting to cross the railroad tracks, and, on the contrary, there was affirmative evidence to show that the conductor took every reasonable precaution. Mr. Justice Pitney, speaking for the court, held that with respect to the conduct of the motorman in turning on full power when confronted with the impending danger of a collision with the railroad train his act evinced complete presence of mind and the exercise of the highest degree of care. But this was a finding of fact, or, rather, a finding of a conclusion that was supported by the overwhelming weight of evidence. At the same time, he pointed out that the cases holding street car companies liable for injuries to passengers caused by a lurch of the car had gone upon the ground that there was a sudden increase of speed under circumstances that evinced a disregard of the safety of passengers—that is, under circumstances of negligence. The fatal defect in the request under consideration is that it would have required the jury to acquit the defendant railway company, even though the quick effort of the motorman to stop the car were made carelessly and negligently. In the Corkhill Case the overwhelming weight of the evidence showed that the increase of speed was applied in the exercise of a high degree of care. If that hypothesis (care in the motor-man) had been imported in the request under consideration, then the request would have been proper, provided there was any evidence to support the theory of fact upon which it was based.

The first assignment of error on behalf of the defendant E. A. Williams requiring consideration challenges the correctness of the refusal of the motion to nonsuit the plaintiff. From an examination of the evidence on the part of the plaintiff sent up with the bill of exceptions, we think there was prima facie evidence of negligence of the defendant Williams. Reviewing the evidence on the part of the plaintiff, we perceive that it tended to show that the wagon of the defendant Williams, driven by his servant, collided in broad daylight with the car of the defendant railway company running on a straight track on a straight street, and in the collision the plaintiff was hurt. The driver of the wagon testified that at the point where the collision took place "you can see three miles" along the car track. In view of the duty that is imposed upon all users of the public highway to exercise reasonable care to avoid collision with each other, such a prima facie case as was made by the plaintiff properly called for explanatory evidence on the part of both defendants. So to hold will put the case in accord with Sheridan v. Foley, 58 N. J. Law, 230, 33 Atl. 484; Trenton Pass. Ry. Co. v. Cooper, 60 N. J. Law, 219, 37 Atl. 730, 38 L. R. A. 637, (34 Am. St. Rep. 592; Bergen County Traction Co. v. Demarest, 62 N. J. Law, 755, 42 Atl. 729, 72 Am. St. Rep. 685. Furthermore, the case so made by the plaintiff was one upon which she was entitled to have a finding by a jury, because whether the facts proved on her part spoke of actionable negligence by the defendants or not was at least a matter debatable by fair-minded men. Mahnken v. Freeholders of Monmouth, 62 N. J. Law, 404, 41 Atl. 921. The question was not what the trial judge would infer from the evidence, but whether the jury might legitimately conclude that the proofs of the plaintiff showed the defendant Williams to have been negligent. Newark Pass. Ry. Co. v. Block, 55 N. J. Law, 605, 27 Atl. 1067, 22 L. R. A. 374; Traction Co. v. Scott, 58 N. J. Law, 682, 34 Atl. 1094. The application of these principles to the facts of the present case justified, and indeed required, the refusal of the motion of nonsuit.

The second assignment of error on behalf of the defendant Williams requiring consideration is based upon the exception to the refusal of the trial judge to charge a request as follows: "The burden of proving negligence on the part of the defendant E. A. Williams Company is upon the plaintiff." Where, as in this case, the plaintiff had made out a prima facie case of negligence, calling for...