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

• Decision Date: 18 June 1906
• Citation: 64 A. 119,73 N.J.L. 639
• Parties: HAYES v. JERSEY CITY, H. & P. ST. RY. CO.
• Court: New Jersey Supreme Court

64 A. 119

73 N.J.L. 639

HAYES

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

Court of Errors and Appeals of New Jersey.

June 18, 1906.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Mortimer Hayes against the Jersey City, Hoboken & Paterson Street Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

The plaintiff was employed as a lineman by the defendant, and had been in its employ for eight months prior to the receiving the injuries for which this suit was brought. His duty was the repairing of trolley wires, and to put up new wires, and to set poles. This work, the plaintiff said, was done from the top of the wagon used by trolley companies to repair trolley wires, the platform of which, by means of a crank, could be raised as high as 20 feet from the ground. On November 20, 1903, he was working on that wagon in the town of Weehawken. With him on the wagon were one McIsaacs, who was, as plaintiff said, supposed to be foreman of the wagon, Van Sciver, the driver, and a helper. The circumstances of the accident, as testified to by the plaintiff, were as follows: "We were sent there to put up a new span wire that leads from the trolley to the pole on the sidewalk. We connected the end of the span wire onto the trolley. Mr. McIsaacs told the driver to get round and take us over to the pole to connect the other end. We turned round to drive over to the sidewalk, and the pole of the wagon snapped and the wagon tipped over." He further stated that the tower, at the time the wagon went over, was 18 or 20 feet from the ground, and by the fall he was severely injured, Plaintiff further testified that it was the second day he had been upon this wagon, but that he had been upon other wagons prior to that time, and that he had previously worked in Brooklyn on wagons of the same general style as this one. He further said that the wheels of the wagon were outside of the trolley tracks and that at the time the pole broke the horses had turned and were almost at right angles to the wagon, and that the pole broke pretty near the middle, and on his direct examination, on being asked how the pole came to snap, said, "The wood, I suppose, was soft," but on his cross-examination said he did not examine the wood after it broke. McIsaacs, who had charge of the wagon, testified that he (the driver) started to turn to get up to the pole which stood in on the sidewalk. "I felt the tower going, and I saw the pole snap, and it went over as he was making the turn." And again: "As we were turning round, the wagon tipped over, and I saw the pole break. It broke toward the wagon. I didn't examine the break in the pole." The driver, Van Sciver, testified that the pole was made of oak; that the wood was sound, nothing rotten about it; and that he accounted for the break by the wagon going over. At the conclusion of the plaintiff's case, on the trial before Mr. Justice Dixon at the Hudson circuit, a nonsuit was ordered.

James F. Minturn, for plaintiff in error. Bedle, Edwards & Thompson, for defendant in error.

VROOM, J. (after stating the facts). There were four assignments of causes of error on the part of the plaintiff in error. The first error assigned is: "Because the court overruled the question of plaintiff's counsel to Peter Van Sciver, as follows: 'Didn't you go into the hotel where he was, and say: "Mortimer, don't blame me. It was soft wood?" Do you remember saying anything to him about the character of the wood?'" The ground upon which it was insisted that this testimony should be admitted was that it constituted a part of the res gestae. An examination of the testimony discloses that the plaintiff, after the accident, was picked up and carried to the sidewalk, where he was...