Jelly v. N. J. St. Ry. Co.

• Decision Date: 24 February 1908
• Parties: JELLY v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

68 A. 1091

76 N.J.L. 191

JELLY

v. NORTH JERSEY ST. RY. CO.

Supreme Court of New Jersey.

Feb. 24, 1908.

Error to Circuit Court, Essex County.

Personal injury action by Willoughby W. Jelly against the North Jersey Street Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

Argued November term, 1907, before GUMMERE, C. J., and BERGEN, J.

Hobart Tuttle, for plaintiff in error. Chauncey G. Parker, for defendant in error.

BERGEN, J. The substantial error alleged in this case is that the trial court refused to nonsuit the plaintiff, and also to direct a verdict for the defendant at the close of the whole case. The testimony of the plaintiff is that he entered a trolley car of the defendant at the corner of Market and Broad streets in Newark, which was going towards Irvington, and when it reached the "loop," which was the point where the accident afterwards happened, he got off the car, either because the car was not going to Millburn, or was going no further, for it is difficult to determine from his testimony just what he means to say. After he left the car he walked for a short distance towards Millburn, and then determined to take a car which he saw approaching. He was standing about two feet from the car as it approached, near enough to ask the motorman whether that car went to Millburn, and was told that it did not, and then turned and started to walk away. As he was doing so, he was struck and knocked down and injured. It appears that the front of the car passed him, but that the rear of the car, in swinging around the loop, projected beyond the track far enough to strike him. On cross-examination he was asked: "Q. How far away from the track were you when you were struck? A. I should say about four feet. Q. Four feet? A. Four or 41/2 feet. Q. Now, why is it that when you saw that car coming around that loop, knowing that it was swinging, you did not step further away from the track? A. Well, I supposed I was out of distance. Q. You supposed that you were far enough away? A. Everybody would be the same."

We are unable to see in this testimony any evidence of negligence on the part of the motorman. He was running the car in the ordinary way around the loop. He saw the plaintiff two or three feet away from the car, with no reason to apprehend that he would remain in a place where he was likely to be struck. The testimony of the plaintiff shows that he saw the car swinging around the loop, but supposed he was far enough away to have the car miss him. There is nothing in this case which shows that the plaintiff was a passenger of the defendant. He was waiting in the street for a car that would carry him to his...