Hutchinson v. Jersey Cent. Traction R. Co.

• Decision Date: 24 October 1924
• Citation: 126 A. 481
• Parties: HUTCHINSON v. JERSEY CENTRAL TRACTION R. CO.
• Court: New Jersey Supreme Court

126 A. 481

HUTCHINSON

v. JERSEY CENTRAL TRACTION R. CO.

Supreme Court of New Jersey.

Oct. 24, 1924.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Action by John Hutchinson against the Jersey Central Traction Railroad Company. Verdict for plaintiff. On defendant's rule to show cause. Rule discharged.

Argued May term, 1924, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Alexander Simpson, of Jersey City, for plaintiff.

Edwin F. Smith, of Jersey City, for defendant.

PARKER, J. The present rule brings up the third successive verdict for the plaintiff in this cause. The first verdict was set aside mainly on the ground of contributory negligence. The second was set aside because of illegal testimony bearing on the measure of damages. 126 A. 482. On the third trial defendant offered no evidence, but rested on the plaintiff's case as presented, and on this rule must necessarily stand on one of three propositions: That the court should have nonsuited, or directed a verdict, or that on plaintiff's case the verdict is clearly against the weight of evidence.

The accident giving rise to the litigation occurred on a Sunday afternoon at a country road crossing, in Monmouth county. Defendant is a corporation of this state, whether organized under the traction act or the general railroad act does not appear. It does appear that defendant at the time and place in question ran its cars on a private right of way (single track), bounded on the north by a strip of roadway called Eighth street, and on the south by a similar strip, called, Ninth street, the whole crossed by Laurel avenue at an angle of about 75 degrees. The plaintiff was operating a motorcycle, with a side car containing his wife and three children, one an infant in arms. They were proceeding southerly on Laurel avenue. Defendant's car was moving westward, both motorcycle and car in plain sight of each other. Plaintiff saw the car when, according to his guess, it was 1,000 feet away from the crossing. The motorman was sworn for the plaintiff, and testified that he slowed down at the whistling post, about 400 feet from the crossing, drifted about 200 feet, then put on the power again, and shut it off when he saw the collision was imminent. Plaintiff's testimony was that when he first saw the car he was about 40 feet from the track, that he was going at 8 to 10 miles an hour, and kept on going, watching the trolley car, and when he was about 10 feet from the crossing he saw it slowing up, about 200 feet away; he kept on across, and just as he got to the other side he "felt a bang." He testified there was no signal by bell or whistle; but we need not stop to consider this, because plainly the presence or absence of such signal had nothing to do with the collision. The case is the familiar one of the injured party seeing the car coming, and exercising, his judgment about crossing in front of it. The car hit the "back" of the motorcycle; in other words, it was all but across when struck.

The first verdict was set aside, on the double ground that the evidence showed that the motorman (who testified for the defendant) was exercising due care, and principally that plaintiff's contributory negligence was demonstrated. At the second trial plaintiff again had a verdict, and that verdict was set aside and the case sent back for a complete retrial, because of error in the admission of medical testimony. At the third trial defendant, as we have said, offered no evidence.

We have given the case the careful consideration demanded by the condition of the record and the large amount of the verdict, and have reached the conclusion that the present verdict ought not to be disturbed....