Dunlop v. Pub. Serv. Coordinated Transp.

• Decision Date: 08 March 1939
• Docket Number: No. 5.,5.
• Citation: 4 A.2d 683,122 N.J.L. 226
• Parties: DUNLOP et al. v. PUBLIC SERVICE COORDINATED TRANSPORT.
• Court: New Jersey Supreme Court

4 A.2d 683

122 N.J.L. 226

DUNLOP et al.

v. PUBLIC SERVICE COORDINATED TRANSPORT.

No. 5.

Supreme Court of New Jersey.

March 8, 1939.

Appeal from Court of Common Pleas, Hudson County.

Action by William Dunlop, Jr., an infant, by his next friend, William Dunlop, Sr., and William Dunlop, Sr., individually, against the Public Service Coordinated Transport, a corporation, for damages resulting from injuries sustained by the infant plaintiff. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued January term, 1939, before BROGAN, C. J., and BODINE and HEHER, JJ

Henry H. Fryling, William H. Speer, and James J. Higgins, all of Newark, for defendant-appellant.

Archie Elkins and Edward A. Markley, both of Jersey City, for plaintiffs-respondents.

BODINE, Justice.

The defendant appeals from a judgment in favor of the plaintiffs. On the afternoon of February 16, 1938, the infant plaintiff, 12 years old, was roller skating on North Street, Jersey City. This street is intersected by New York Avenue, upon which the defendant operates a single line trolley. North Street is built up a hill and is paved with asphalt. The injured boy was skating down the hill. When he started down, the trolley car causing the injury was at a standstill at the North Street intersection. When he was part way down, the motorman started the car without a warning signal. The car moving across his path, the boy swung to his right into New York Avenue, but the turn he made, however, was not sufficiently sharp to avoid a collision with the front part of the trolley. His right leg went under the car and amputation below the knee became necessary.

It is urged that the motions for a non suit or a direction of a verdict should have been granted. We think not. In a broad and general sense, the boy on skates had the rights and obligations of a pedestrian. Eichinger v. Krouse, 105 N.J.L. 402, 144 A. 638. Both parties to the suit must exercise their right in the highway with due regard to the rights of others. Glasco v. Jersey City, H. & P. St. Ry. Co., 81 N.J. L. 469, 79 A. 368. The motorman and the "boy were both under a duty to use their powers of observation, the one for the safety of the pedestrian, and the other for his own safety.

The issues of negligence and contributory negligence were clearly presented by the proofs and were for the jury. This is not a case where a boy, without looking, ran backwards into the traveled portion of a highway. Clerici v. Gennari, 102 N.J.L. 377, 132 A. 667, 44 A.L.R. 1302. But a case where the jury could have found that a boy, observing a standing trolley when he started down the hill and who could have been observed approaching by an attentive motorman, is struck by the car before he can reach a place of safety. North Jersey St. Ry. Co. v. Schwartz, 66 N.J.L. 437, 49 A. 683; Weinberger v. North Jersey St. Ry. Co., 73 N.J.L. 694, 64 A. 1059; Carmany v. West Jersey & S. R. Co., 78 N.J.L. 552, 74 A. 656.

The facts in the present case are very similar to the proofs in Lynch v. Public Service R. Co., 82 N.J.L. 712, 83 A. 382, 42 L.R.A.,N.S, 865, where there was a collision between a bobsled and a trolley car. There it was held that sledding in the public streets was not a nuisance; that persons had the right to use the public streets for pleasure, as well as for travel, and that the issues of negligence and contributory negligence were for the jury on the proofs adduced very similar in nature and import to those in this case. See also Reeves v. Prosser, 109 N.J.L. 485, 162 A. 729; Mellen v. Public Service, etc, Co., 110 N.J.L. 557, 166 A. 216.

The motorman, if he could by the exercise of reasonable care avoid a collision, was under an obligation so to do. The jury could find that in the starting of the car, when the motorman...