Hedges v. McManus

• Decision Date: 02 March 1932
• Parties: HEDGES et al. v. McMANUS et al.
• Court: New Jersey Supreme Court

159 A. 87

HEDGES et al.

v. McMANUS et al.

Supreme Court of New Jersey.

March 2, 1932.

Action by Maurice Hathaway Hedges, by his next friend, and Lewis C. Hedges and Elizabeth Hedges, against Ignatius McManus and another. Verdicts for plaintiffs. On rule to show cause why verdicts should not be set aside.

Rule absolute as to Lewis C. Hedges and Elizabeth Hedges. Rule discharged as to Maurice Hathaway Hedges.

Bourgeois & Coulomb, of Atlantic City, for the rule.

Bolte & Tripiclan, of Atlantic City, opposed.

SOOY, J.

This is defendants' rule to show cause why verdicts in favor of plaintiffs should not be set aside. The grounds are four in number, and I will first consider the verdict in favor of Elizabeth Hedges and her husband. Lewis C. Hedges, which verdicts will stand or fall as this rule is determined either in favor of or against Mrs. Hedges.

The facts upon which this decision will be based will be gathered, mainly, if not entirely, from the testimony of Mrs. Hedges, and my first inquiry will be as to whether the facts as gleaned therefrom and thereby do or do not bar her right of recovery on the ground of contributory negligence, thus leaving the question of defendant's negligence for discussion in considering the verdict in favor of Maurice H. Hedges, a boy of nine years of age, and a passenger in his mother's automobile at the time hereinafter dealt with.

Does the testimony of Mrs. Hedges disclose that she contributed to her injuries in such a manner that had she not been negligent she would not have been injured by the negligence of defendant? Could she, by the exercise of reasonable care on her part, have avoided the collision complained of, notwithstanding defendant's alleged negligence?

The collision was between a trolley car of defendant (operated under a steam railroad franchise) and a Ford sedan owned and operated by Mrs. Hedges at a point in Northficld where the railroad tracks cross Mt. Vernon avenue. This is an unprotected grade crossing, Mt. Vernon avenue running, generally, north and south, and the trolley tracks east and west. Mrs. Hedges approached the tracks from the south and was proceeding north. The trolley was coming from the west and proceeding east. The right of way of the defendant is 50 feet wide. Mt. Vernon avenue is 36 feet wide and the crossing is 52 feet wide.

Mrs. Hedges lived on Mt. Vernon avenue a block or more north of the crossing, and had crossed it many times and knew that cars used the tracks on a frequent schedule and was well acquainted with the character of such obstructions as might impede her view as she approached from either side. She was bringing her children home from school. It was daylight. Mrs. Hedges turned into Mt. Vernon avenue from Main street and proceeded toward the tracks. On her left, to the west, was Zion road about 1075 feet away, and at this point, Zion road, the defendant railroad company maintained a passenger platform and building and it was from this direction and point that a trolley car was approaching.

Just what Mrs. Hedges did towards making observations prior to the time when she came to a dwelling house situate at the southwest corner of Mt. Vernon avenue and the right of way is not of great importance. She says she made observations, but, be that as it may, her conduct nearer the tracks is the test of her right to hold the verdict.

Mrs. Hedges says that when at this house (southwest corner above mentioned) she looked toward Zion road, "I observed all the way down, I didn't see anything." At this time, then, she must have been beyond the point where this house was an obstruction to her view otherwise she could not have seen "all the way down." Zion road, as has been hereinbefore stated, is about 1,075 feet to the west of Mt. Vernon avenue.

Mrs. Hedges proceeded from this point in Mt. Vernon avenue (beyond the house on the southwest corner) without seeing the on-coming car until just before she was struck, and when she saw it she attempted to turn her car to her right in order to avoid it. She was too close to stop her auto. She says:

"I could have stopped but it would have stopped me pretty close.

"Q. Why didn't you stop? A. It is rather hard to' tell why I didn't. When you are caught so quick like that you use your mind. You think something is coming on you and— I don't know—I just wanted to get away."

Mrs. Hedges, with reference to the southwest corner house obstruction, says that she knew of this obstruction to her view "as long as I have been driving there.

"Q. Then when you came to that you realized that the house that you were approaching would obstruct the view of the approaching train didn't you? A. Yes."

Mrs. Hedges endeavors to explain her inability to see the on-coming car by saying that there was shrubbery of considerable amount and height growing on the right of way and that the trolley wire poles were located and staggered in such a way as to interfere with her view. A photo marked in evidence shows this shrubbery, and the jury would not have been warranted in finding that it did in fact obstruct her view. The exact location and size of the poles were fully given and refuted her claim in this respect. The evidence of the engineers, as to distances—one for the plaintiff and one for the defendant—is in substantial agreement.

The distance from Zion road station to the whistle board is 205 feet, and from that board to Mt. Vernon avenue 958 feet.

Mr. Raub, an engineer for the railroad, made observations as follows:

Measuring from the south rail 24 feet sopth, he said a person had a view 1,483 feet down the track.

25 feet (line of southwest corner house), a view of 1,293 feet.

These measurements and observations testified to by Mr. Raub, and not refuted by other evidence, show that Mrs. Hedges at 24 feet from the near rail, as she approached it, had a view down the track of 1,483 feet. At 25 feet, along the line of the aforesaid house, she had a view of 1,293 feet. So that Mrs. Hedges, at all times after she reached the 24-foot point, had a view to the west down beyond Zion station. The trolley car stopped at Zion station for a passenger, started up, and was proceeding toward the scene of the collision, and Mrs. Hedges did not see it until too late to avoid a collision. She is,...