Esler v. Camden & Suburban Ry. Co.

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: HENDRICKSON, J.
• Citation: 58 A. 113,71 N.J.L. 180
• Decision Date: 13 June 1904
• Parties: ESLER v. CAMDEN & SUBURBAN RY. CO.

58 A. 113
71 N.J.L. 180

ESLER
v.
CAMDEN & SUBURBAN RY. CO.

Supreme Court of New Jersey.

June 13, 1904.

(Syllabus by the Court.)

Appeal from District Court of Camden.

Action by John K. Busier against the Camden & Suburban Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued February term, 1904, before PITNEY and HENDRICKSON, JJ.

Nelson Burr Gaskill, for appellant.

William C. French, for appellee.

HENDRICKSON, J. The plaintiff brought suit against the defendant company and recovered judgment in the Camden district court for damages to his horse, wagon, and harness resulting from a runaway accident in the city of Camden. The gist of the action was the alleged negligent conduct of the company and its agents in causing the fright of the plaintiff's horse while standing at the corner of cross-streets in charge of a boy while the plaintiff was vending market truck to the residents in the immediate vicinity. The particular act of negligence relied on to establish the defendant's liability was the propelling along the street of two cars—the one a box car and. the other a dirt car—that were unusual in appearance, and such as would be likely to frighten an ordinarily gentle horse, in such a negligent and careless manner as to cause the injury complained of.

An appeal has been taken, and a reversal is asked for because of a refusal of the trial judge to nonsuit and to direct a verdict. It is claimed that the evidence adduced by the plaintiff went no farther than to show that the cars were in the ordinary use of the company at the time, and approached the crossing at the usual and ordinary rate of speed, and that they came within eight or ten feet of where the horse and wagon stood before the horse showed signs of fright, and that, when he did, the motorman at once stopped the cars, which came to a halt about opposite to the horse, and that, although some of the witnesses had testified that the appearance of the cars was calculated to frighten horses, it was also developed that the use of them upon the street where the wagon stood, in carrying stone or ties, was not uncommon. But conceding, for the present, that a nonsuit at this point should have been granted, we think there was later testimony that justified the court in submitting the case to the jury. Refusal to nonsuit for failure of proofs is not error, if the defect was supplied by evidence taken in the progress of the cause. D., L. & W. R. Co. v. Dailey, 31 N. J....