Horowitz v. Gottwalt

• Decision Date: 19 February 1918
• Citation: 102 A. 930
• Parties: HOROWITZ. v. GOTTWALT.
• Court: New Jersey Supreme Court

102 A. 930

HOROWITZ.

v. GOTTWALT.

Supreme Court of New Jersey.

Feb. 19, 1918.

Action by Louis Horowitz against Stepban A. Gottwalt. Verdict for defendant, and plaintiff obtained a rule to show cause. Rule discharged.

Benjamin M. Weinberg, of Newark, for plaintiff.

Richard F. Jones, of Jersey City, for defendant.

PER CURIAM. The plaintiff was a passenger in an open trolley car. The car was proceeding in an easterly direction on Orange street in the city of Newark. The car stopped at the corner of Orange and Boyden streets. The plaintiff alighted from the car, but, whether before or after the car stopped was a disputed question of fact, and for the jury to settle. Almost immediately after the plaintiff alighted from the car, and while he was between the side of the car and the curb, he was struck by an automobile delivery wagon, coming from the west, and was severely injured. The jury found a verdict for the defendant. The plaintiff seeks to have the verdict set aside for various reasons assigned under the rule and discussed in the brief.

1. The first contention is that the verdict is against the weight of the evidence. We cannot say that the verdict is so clearly against the weight of the evidence, as to justify our disturbing it.

2. Counsel for plaintiff contends that the court erred in charging the jury as follows:

"The mere proof of the occurrence of the accident raises no presumption of negligence on the part of the driver of the automobile."

It is not denied by counsel for plaintiff that as a general proposition of law it is correct, but he insists that as applied to the facts of the present case it was erroneous. To support this view counsel cites in addition to the common-law doctrine upon the subject paragraph 10 of section 2 of the "Traffic Act" (P. L. 1915), which regulates the passing of a trolley car by a vehicle while the car is stored to take on or discharge passengers, by forbidding the driver of the vehicle following the trolley car from passing the latter and to give an audible indication of his approach, and to exercise due precaution not to interfere with or injure the passengers getting on or off the car, etc. Of course, proof of a violation of the provisions of the paragraph referred to tends to establish negligence. It must be remembered that the right of action is not founded upon the provisions of the traffic act, but upon the common law, for a failure of the driver of the automobile to exercise reasonable care in the operation of his vehicle. The traffic act operates to increase the duties imposed by the common law. Proof, therefore, of the failure of the driver to observe the traffic laws, under the circumstances then existing, tends to establish negligence. The law does not go to the extent to raise a presumption that, because a traffic rule has been...