Donus v. Pub. Serv. Ry. Co.

• Decision Date: 17 May 1926
• Docket Number: No. 9.,9.
• Citation: 133 A. 196
• Parties: DONUS v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

133 A. 196

DONUS

v. PUBLIC SERVICE RY. CO.

No. 9.

Court of Errors and Appeals of New Jersey.

May 17, 1926.

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Action by Charles Donus, administrator, etc., against the Public Service Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Alex. Simpson, of Jersey City, for appellant.

Joseph Coult, of Newark, for respondent.

BLACK, J. This suit was brought to recover damages under the Death Act (2 Comp. St. 1910, p. 1904).

The case was tried in the Hudson circuit court, resulting in a judgment of nonsuit. The nonsuit was directed by the trial judge, first, on the ground that there was no negligence shown on the part of the defendant; and, second, contributory negligence was shown on the part of the decedent. These are the alleged errors assigned as grounds of appeal; the testimony in the record presenting jury questions, so it is argued. Two witnesses saw the accident. One Wm. Yuengling, who was approaching the trolley car in an automobile, he first saw the car when 125 feet distant and the decedent 75 feet away. The other witness was Charles Richards, the motorman of the car that caused the injury. Their testimony is in accord and is to the effect that, on the 18th day of April, 1923, at 4:15 p. m., the day of the accident, the car was going east on the Paterson plank road in Secaucus at about 12 miles an hour. The witness William Yuengling testified:

"When I first saw the woman, the woman walked directly out to the trolley ear; I should judge she walked out to about 3 feet from the track. She rolled down and covered up her face and dove underneath the car. * * * She stood 3 feet from this track and she kneeled down alonsside the car as it approached her; covered up her head and dove underneath the car. * * * She was about 3 feet away from the track. * * * She dove practically underneath the front bumper of the car. * * * He [i. e., the motorman] blew the whistle."

Charles Richards the motorman testified:

"It was, I should judge, about 30 feet, that I seen this woman. * * * As my car proceeded, I blew my whistle, and she stopped right by the rail and kneeled down and threw her head and body over the rail, that way. * * * She was in front of the car as she did this. * * * I was going about 12 miles. * * * The car went after the accident "about 5 feet. * * * It took me all of a sudden and I jammed on my brakes. * * * It was as quick as she knelt right down; as soon as I seen her kneel down I jammed on my brakes. * * * I threw on my reverse."

The test to be applied by the trial judge is whether negligence may be reasonably inferred from the testimony. Metropolitan Ry. Co. v. Jackson, L. R. 3 App. Cases, 197; Newark Passenger Ry. Co. v. Block, 55 N. J. Law, 607, 27 A. 1067, 22 L. R. A. 374. If none, there is no case to go to a jury. Negligence of the motorman cannot reasonably be inferred from the testimony in the record. It is difficult to see what more, if anything, the motorman either...