N.J. Elec. Ry. Co. v. Miller

• Decision Date: 09 March 1897
• Citation: 36 A. 885,59 N.J.L. 423
• Parties: NEW JERSEY ELECTRIC RY. CO. v. MILLER.
• Court: New Jersey Supreme Court

36 A. 885

59 N.J.L. 423

NEW JERSEY ELECTRIC RY. CO.

v. MILLER.

Court of Errors and Appeals of New Jersey.

March 9, 1897.

(Syllabus by the Court.)

Error to circuit court, Passaic county; before Justice Dixon.

Action by George Miller against the New Jersey Electric Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

Eugene Stevenson, for plaintiff in error.

John W. Harding, for defendant in error.

McGILL, Ch. This was an action for damages occasioned by a collision between a trolley car and a wagon driven by the plaintiff below, which resulted in the plaintiff's being thrown to the ground, and injured. The plaintiff drove easterly through Ward street, which opens into and terminates at Railroad avenue, in the city of Paterson, and, upon reaching Railroad avenue, drove into it, and upon the tracks of the New Jersey Electric Company there located, purposing to turn and drive along Railroad avenue, when the collision occurred. The judge charged the jury that it was entirely plain that the plaintiff below had the right of way across the trolley track as he drove out of Ward street upon Railroad avenue, and that the motorman knew, or was bound to know, that the plaintiff had the right of way if he chose to go on across the track. He also charged that both the plaintiff below and the motorman were bound to exercise reasonable care to prevent a collision, and that, if the jury should find that the plaintiff had contributed to the accident by his negligence, he could not recover. The effect of these propositions, taken together, was to lead the jury to the implication that in proceeding to use the right of way, which the charge conceded to him, the plaintiff was not guilty of negligence. The defendant's counsel was not satisfied with the court's assumption of the fact that the plaintiff had a right of way, which he might use without being guilty of negligence, and in order that the jury might pass upon the question whether he had such right, as a question of fact, he requested the court to charge as follows: "That it is the duty of a driver approaching the line of a street-railway company, where his view is impeded by vehicles, so that he cannot see up the track, to wait till he reaches a point where his sight is not impeded, before going on the track." To this request, the judge charged: "He ought to be able to see far enough up the track to see that he has the right of way, and he has the right of way if he can get upon...