Jackson v. Consol. Traction Co.

• Decision Date: 15 June 1896
• Citation: 59 N.J.L. 25,35 A. 754
• Parties: JACKSON v. CONSOLIDATED TRACTION CO.
• Court: New Jersey Supreme Court

35 A. 754

59 N.J.L. 25

JACKSON

v. CONSOLIDATED TRACTION CO.

Supreme Court of New Jersey.

June 15, 1896.

(Syllabus by the Court.)

Action by Andrew Jackson, administrator of Jay J. Cooper, deceased, against the Consolidated Traction Company, for death by wrongful act, in which there was a judgment for plaintiff. On rule to show cause why a new trial should not be granted. Discharged on condition of remittitur.

Argued February term, 1896, before the CHIEF JUSTICE, and DIXON, GARRISON, and MAGIE, JJ.

Warren Dixon, for the rule.

John Linn, opposed.

MAGIE, J. Among the reasons assigned in support of this rule are two based upon the refusal of the trial judge to nonsuit the plaintiff, or to direct a verdict for the defendant. It is first argued that such refusals were erroneous, because there was no evidence that the trolley car which struck and killed plaintiff's intestate belonged to defendant, or was controlled or run by it. An examination of the case shows that there was no direct evidence of that sort. But, in my judgment, this contention should not be considered. Neither the motion to nonsuit nor the motion to direct a verdict presented to the trial judge such lack of evidence as the ground on which the motions were made. If his attention had been called to this point, he had discretion to permit the evidence to be supplied, and doubtless it would have been supplied. The motions were made upon the ground, among others, that plaintiff had not established the liability of defendant. This vague statement left the mind of the trial judge unenlightened as to defendant's claim Whether it was that the evidence failed to prove that the death of plaintiff's intestate was caused by the trolley car, or that the motorman was negligent, or that the motorman was in defendant's employ, so that the maxim respondeat superior would apply, was not disclosed. Upon error, a bill of exceptions which does not show that the precise point of which a review is sought was made by counsel, presented to the mind of the court, and decided, will not be considered. Insurance Co. v. Barracliff, 45 N. J. Law, 543. The same reason applied to the review of such rulings of the trial judge by rules to show cause. But there was some evidence from which it could be justly inferred that the trolley car which caused the death of plaintiff's intestate was under the management and control of defendant. Plaintiff called as a witness the person who had been the conductor in charge of the car at the time of the accident. In cross examination of this witness defendant's counsel drew...