Eagen v. Jersey City, H. & P. St. Ry. Co.

• Citation: 74 N.J.L. 699,67 A. 24
• Parties: EAGEN v. JERSEY CITY, H. & P. ST. RY. CO.
• Decision Date: 17 June 1907
• Court: United States State Supreme Court (New Jersey)

67 A. 24

74 N.J.L. 699

EAGEN

v. JERSEY CITY, H. & P. ST. RY. CO.

Court of Errors and Appeals of New Jersey.

June 17, 1907.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County.

Action by Francis J. Eagen against the Jersey City, Hoboken & Paterson Street Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

William D. Edwards, for plaintiff in error. James F. Minturn, for defendant in error.

MAGIE, Ch. The only assignment of error which it is necessary to consider is that which claims that it was erroneous in the trial judge to refuse to direct a verdict for plaintiff in error, which direction was requested on the ground that negligence on the part of the defendant in error had been shown which contributed to the injury of which he complained, and that, upon the whole case, there was no evidence upon which a verdict could be sustained. It is unnecessary to consider whether there was evidence upon which the jury were entitled to find that the railway company was negligent in the running of the trolley car, by collision with which the defendant in error was insured.

An examination of the proofs disclosed the following facts, in respect to which there was no contradiction: Eagen was a passenger on a trolley car of the railway company, proceeding north. Upon his evincing an intention to alight at a place near the factory in which he was employed, a signal was given by the conductor, and the car slowed down. Eagen alighted, either after it had stopped or when it was going very slowly. The car then proceeded on its way. He walked behind it, intending to cross the street on which he had alighted to the place where he was employed. To do this, he had to cross the other track of the railway company on which its cars ran in the opposite direction from that by which he had come. In doing so, there was a collision between him and a moving car on that track. There was evidence tending to show that it was a windy day, and that Eagen moved with his head bent to protect himself from the flying dust, and so walked into the side of the moving car, and was thrown down and injured. But there was also evidence which the jury might believe that Eagen was struck by the car when he was about the middle of the track on which it was running. As that view of the situation at the time of the collision is more favorable to him, it must be assumed, that the jury would have adopted that view. There was no evidence that the car was going at an excessive speed. The question then is whether, upon this evidence, Eagen, in attempting to cross the track on which the car which struck him was moving, had taken such care for his own safety as a prudent man is required to take under such circumstances. In respect to the care he took Eagen himself testified as follows: "Q. You went around the end of the car? A. Back of the car. Q. You looked? A. Yes, sir; I looked up. Q. Why didn't you see the car coming? A. Because the other car obstructed my view. Q. When you got off the car? A. I couldn't see nothing. The first thing I knew the car struck me. * * * Q. You don't know what part of the car struck you? A. No. I don't know what part of the car struck me." Upon this evidence of Eagen, which was in no respect qualified by him, or contradicted by others, the trial Judge upon a motion to nonsuit, declared that he would permit the case to go to the jury "on the lines of the Scott Case." It may be assumed that he referred to the case of Consolidated Traction Co. v. Scott, 58 N. J. Law, 683. 34 Atl. 1094, 33 L. R. A. 122, 55 Am. St. Rep. 620, and that, in denying the request for a nonsuit, he held that the doctrine of that case on the subject of contributory negligence justified the submission to the jury of that question, upon the evidence above quoted. In the case above cited, one question considered and decided was...