Miller v. Pub. Serv. Corp. of N.J.

• Decision Date: 16 November 1914
• Parties: MILLER et al. v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.
• Court: New Jersey Supreme Court

92 A. 343

88 N.J.L. 631

MILLER et al.

v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1914.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Sarah Miller and another against the Public Service Corporation of New Jersey. From judgment of nonsuit, plaintiff appeals. Affirmed.

The material facts proven by the plaintiff were as follows: The defendant operated a street railway along Bergen and Fairmount avenues in Jersey City; that Fairmount avenue intersects and crosses Bergen avenue at an obtuse angle, and at the intersection the railway leaves one avenue and continues along the other, the change making necessary a curve; that about 15 minutes after 10 in the evening of the day of the accident, which is the foundation of plaintiff's claim, she and her mother, Elvina Greenleaf, walked into Bergen avenue on a line with the southerly side of Fairmount avenue to a point about the middle of the curve, and signaled the motorman on an approaching car that she wished him to stop it; that the motorman slacked the speed of the car as it struck the curve, and then increased it as the car rounded the curve; that the front of the car passed plaintiff and her mother but, owing to the curve, the rear of the car was given a swing so that it overlapped a portion of the street to a greater extent than the front, and struck the plaintiff, causing the injuries complained of; that the plaintiff had on two previous occasions boarded the car at about the point of the accident; that she knew there was a curve at that point; that she supposed the rear end of a car running on fixed rails around a curve had a swing; that when the front of the car passed her, she did not move from her position until she was struck, and although the motorman saw them standing near the front of the car, he did not stop it or give any warning. There was no proof of the distance plaintiff was standing from the car. On these facts, the trial court ordered a nonsuit, from which plaintiff appeals.

Edwards & Smith, of Jersey City, for appellant.

De Graw & Murray, of Newark, and W. E. Tipple, of New York City, for appellee.

BERGEN, J. (after stating the facts as above). The first point urged in the support of this appeal is that there was sufficient proof of negligence on the part of the defendant's servant to require its submission to the jury. The only basis upon which defendant's negligence can be rested in this case is that the motorman was charged with knowledge that the position of the plaintiff was within the range of the swing of the rear of the car, and therefore he should have stopped the car, or warned plaintiff as he passed that she was liable to be struck by the rear of the car if she remained where she was. This implies that every motorman when passing a person standing in the street must determine the question whether such person is in danger of being struck by the rear part of the car while passing around a curve, although he is far enough away to allow the front of it to pass. We do not conceive that any such...