Dennis v. N. Jersey St. Ry. Co.

• Decision Date: 26 February 1900
• Citation: 45 A. 807,64 N.J.L. 439
• Parties: DENNIS v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

45 A. 807

64 N.J.L. 439

DENNIS

v. NORTH JERSEY ST. RY. CO.

Supreme Court of New Jersey.

Feb. 26, 1900.

(Syllabus by the Court.)

Error to circuit court, Essex county.

Action by Charles P. Dennis against the North Jersey Street-Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued November term, 1899, before MAGIE, C. J., and DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Joseph Coult, for plaintiff in error.

Robert H. McCarter, for defendant in error.

LIPPINCOTT, J. The plaintiff in this action is an undertaker in the city of Newark. On December 27, 1898, between 6 and 7 o'clock, after dark, he was driving his wagon northwardly along Plane street to cross Central avenue. Central avenue is traversed by the trolley cars of the defendant company with two tracks of railway thereon. Central avenue, as it approaches Plane street, has a very considerable descending grade. The plaintiff's wagon, as he was crossing Central avenue, was struck by a car coming down Central avenue, and overturned, and he himself injured. The plaintiff testifies that he approached Central avenue on Plane street on a slow trot; that as he got near the corner he was watching for the cars; that he could see both sides; that he saw no car, nor did he hear any bell rung, and proceeded across, and, just as he was getting over the track, he was struck by the car coming down Central avenue. He had rubber tires on his wagon, and he thinks if the bell had rung before the car reached this crossing he would have heard it. He testifies that he did not see any headlight on the car until it struck him. Several witnesses testify that the car was running very fast down the hill as it approached this crossing, and that the bell was not heard by them to ring. Some of the witnesses say that no bell was rung, and that the car struck the wagon with such force that the collision was heard at a considerable distance. Some of the witnesses say that the plaintiff was struck just as he was entering upon the track, and some think it was just as he was getting off the track. The car proceeded a short distance, carrying the wagon with it before it stopped. This is the general character of the evidence upon the part of the plaintiff relating to the accident. A motion to nonsuit was made on the grounds: First, that no negligence was shown on the part of the servants of the defendant company in the operation of the car; and, secondly, that the plaintiff was guilty of contributory negligence. This motion was refused, and on this refusal error is assigned.

The trial court correctly refused this. There was evidence that the motorman was running his car very rapidly down the hill towards this crossing, and that he was not ringing or sounding the bell attached to the car as a signal of his approach with the car. It was, therefore, certainly a question for the jury to determine whether the motorman was exercising reasonable care in operating the car under all the circumstances. So, also, it was for the jury to determine whether the plaintiff was, under all the circumstances, guilty of contributory negligence. Whether he acted as a prudent man, under the circumstances, was for the jury. The plaintiff was not bound, as matter of law, to stop, look, or listen for the approach of the car before going over the crossing. The precise question whether he was in the exercise of reasonable care was for the jury. Traction Co. v. Scott, 58 N. J. Law, 682, 34 Atl. 1094, 33 L. R. A. 122; Traction Co. v. Haight, 59 N. J. Law, 577, 37 Atl. 135; Traction Co. v. Glynn, 59 N. J. Law, 433, 37 Atl. 66; Traction Co. v. Lambertson, 59 N. J. Law, 297, 36 Atl. 100; Railway Co. v. Miller, 59 N. J. Law, 423, 36 Atl. 885, 39 Atl. 645; Traction Co. v. Chenowith, 58 N. J. Law, 416, 34 Atl. 817, affirmed in Gl N. J. Law, 554, 35 Atl. 1067. The testimony on the part of the defendant was directed to the establishment of every reasonable precaution and reasonable care on the part of the motorman in operating his car towards and over the crossing to avoid injury. It was also directed to the establishment of the want of reasonable care, or contributory negligence, on the part of the plaintiff. Upon the facts, a submission on all these questions to the jury was required.

The remaining question is whether the trial court erred in...