Flynn v. Consol. Traction Co.

• Decision Date: 16 June 1902
• Citation: 52 A. 369,67 N.J.L. 546
• Parties: FLYNN v. CONSOLIDATED TRACTION CO.
• Court: New Jersey Supreme Court

52 A. 369

67 N.J.L. 546

FLYNN

v. CONSOLIDATED TRACTION CO.

Court of Errors and Appeals of New Jersey.

June 16, 1902.

Error to supreme court.

Action by Joseph B. Flynn against the Consolidated Traction Company. From a judgment directing a nonsuit, plaintiff brings error. Affirmed.

Thomas F. Noonan, for plaintiff in error.

James B. Vredenburgh, for defendant in error.

GUMMERE, C. J. This is a suit to recover damages for personal injuries. The plaintiff was traveling as a passenger upon an open car of the defendant. The evidence submitted on his behalf disclosed the following state of facts: Upon approaching his destination he stood up in the car and shook his lunch basket, to notify the conductor to let him off. The conductor pulled the bell rope, and the ear then began to slow down. The plaintiff then got upon the running board on the right-hand side of the car. In the meantime the car was running more and more slowly, but before it came to a stop the conductor gave the signal to go ahead, and the car immediately began to increase its speed, whereupon the plaintiff turned around and faced the rear of the car, leaning outward so that he could see the conductor, and then shook his basket at him again, and called, "Hey! Hey! I want to get off here." Just as he was turning back, so as to look toward the front of the car, it overtook a milk wagon, which was proceeding in the same direction and was quite near to the track, and his head came in contact with one of the handles upon the wagon door, receiving the injury for which he now sues. The plaintiff had not observed the wagon before be was struck, and was not conscious that it was near. Upon these facts being shown, the trial court directed a nonsuit to be entered, and the writ of error is brought to test the correctness of this instruction.

The judgment under review was directed upon the second trial of the case. At the first trial a verdict was returned for the plaintiff upon practically the same facts submitted by the plaintiff as have been herein recited. A rule to show cause was subsequently allowed, and, after hearing, was made absolute, upon the ground that the plaintiff, on taking his position on the running board, was under a duty to use his powers of observation, and notice and avoid dangers ab extra, and that his leaning over so far as to be carried against a passing vehicle, which be did not observe, and which, if he had used observation, he must have seen and could have avoided,...