Fitzhenry v. Consol. Traction Co.

• Decision Date: 18 June 1900
• Citation: 46 A. 698,64 N.J.L. 674
• Parties: FITZHENRY v. CONSOLIDATED TRACTION CO.
• Court: New Jersey Supreme Court

46 A. 698

64 N.J.L. 674

FITZHENRY

v. CONSOLIDATED TRACTION CO.

Court of Errors and Appeals of New Jersey.

June 18, 1900.

(Syllabus by the Court.)

Error to supreme court.

Action by Helen Fitzhenry against the Consolidated Traction Company. Judgment of nonsuit. Plaintiff brings error. Affirmed.

Weller & Lichtenstein, for plaintiff in error. Vredenburgh & Garretson, for defendant in error.

HENDRICKSON, J.In this case a nonsuit was granted at the close of the plaintiff's evidence. The principal ground for this ruling, as stated by the learned trial judge, was the failure to show negligence on the part of the defendant company. The question of contributory negligence, though argued, was not directly passed upon in the ruling. The facts were that on Sunday evening, May 2, 1897, shortly after 7 in the evening, and while it was yet light, the plaintiff, a girl of 9 years of age, was in the act of crossing Newark avenue, in Jersey City, at a point from 100 to 150 feet west from Railroad avenue. She had by the hand her little brother, 3 years and 9 months old, when she was struck by a west-bound car of the defendant's street railway, which was being propelled by electricity. The little boy was killed, and the plaintiff was injured. The latter brought suit for damages for her injury.

The plaintiff contends that there were proofs of negligence on the part of the defendant and its servants sufficient to go to the jury. The only negligent act complained of in the declaration is that the car "was run with great and unlawful speed foul of and against" the plaintiff. But, in addition to the high rate of speed, it is insisted that the proofs tend to show that the motorman was further negligent by having his head turned, looking at the store windows on his left, at the time of the accident, and that no bell or gong was being sounded. It is proper to say that at the time of the accident the car was not at or approaching a street crossing, and it does not appear that the street was crowded, nor that the car was moving at an unusually high rate of speed, considering that it was traversing the middle part of a block. And it is contended on the part of the defendant that under the evidence it clearly appears that there was no negligence shown on the part of the motorman that became in any degree the proximate cause of the collision. Whether there was sufficient evidence to go to the jury on that point we find it unnecessary to determine, because the evidence presents another, and, as we think, a more satisfactory, ground, upon which the ruling of the judge should be sustained, and that is the ground of contributory negligence. To show this I will cite a few further facts in evidence. The plaintiff, having stopped on the curb of the street, was attracted by a friend waving her hand on the opposite side of the street, and then started to go across to her. According to one witness, they went on a run; according to another, they walked, but when they reached the gutter they walked right quickly across; or, as the witness further explained, "got a quick gait on them." They passed the east-bound track, along which a car had just passed, and had reached the first fail of the west-bound track when they were struck by the car. Their course in crossing was not at right angles, but slightly on a slant. Whether the slant was towards or from the approaching car the witnesses differ; but, in any event, after the east-bound car went by, the plaintiff could plainly have seen the tracks and the approaching car if she had looked. It was insisted that when they crossed the first rail the car was yet 25 or 30 feet away. One witness, who admits that he looked from the south side of the street at a distance of from 100 to 150 feet in the rear of the car at the time, described the situation as above, but on his cross-examination he testified as follows: "Q. They passed right in front of the car? A. Yes, until they got to the south track. They were struck there. Q. The south track? A. Yes, on the north side of the track this way. Q. You mean the south rail of the north track? A. Yes. Q. They...