Newark Passenger Ry. Co. v. Block

• Citation: 27 A. 1067,55 N.J.L. 605
• Parties: NEWARK PASSENGER RY. CO. v. BLOCK.
• Decision Date: 05 December 1893
• Court: United States State Supreme Court (New Jersey)

27 A. 1067

55 N.J.L. 605

NEWARK PASSENGER RY. CO.

v. BLOCK.

Court of Errors and Appeals of New Jersey.

Dec. 5, 1893.

(Syllabus by the Court.)

Error to supreme court.

Action for personal injuries by Fanny Block against the Newark Passenger Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.

The other facts fully appear in the following statement by MAGIE, J.:

Fanny Block, the defendant in error, brought an action of tort against the Newark Passenger Railway Company, the plaintiff in error, in the Essex circuit, to recover damages for an injury received from a car of the company running in a public street. After the evidence was all in, counsel for the railway company requested the judge to direct a verdict in its favor. The request was refused, and exception was taken. Other exceptions were taken to the charge, and to refusals to charge as requested. After judgment in favor of defendant in error, the cause was removed by writ of error to the supreme court, and error was assigned on the exceptions. The judgment was there affirmed.

Anthony Q. Keasbey and Edward Q. Keasbey, for plaintiff in error.

Louis Hood and Samuel Kalisch, for defendant in error.

MAGIE, J., (after stating the facts.)

In support of the assignment of errors founded on the exception to the refusal of the trial Judge to direct a verdict for plaintiff in error, it is insisted that the evidence (all of which is contained in the bill of exceptions) showed that there was no negligence on its part producing the injury for which the action was brought, but that there was negligence on the part of the defendant in error producing, or contributing to produce, her injury. In reviewing a judgment founded on a verdict directed by the trial judge after the whole evidence was in, this court declared that a jury should only be controlled in its verdict by a peremptory instruction when the testimony is of such a conclusive character as would compel the court, in the exercise of a sound legal discretion, to set aside a verdict in opposition thereto, or, as the learned chancellor who delivered the opinion said: "To put it more forcibly and more accurately, if the evidence be such that the court would set aside any number of verdicts rendered against it, the jury may be controlled." Crue v. Caldwell, 52 N. J. Law, 215, 19 Atl. 188. This rule must furnish the test of the propriety of refusing a peremptory direction to find a verdict it has been questioned elsewhere whether, in actions to enforce a liability arising from negligence, the trial judge can withdraw from the jury, by nonsuit or direction for a verdict, the question of negligence, which is a mixed question of law and fact. In this state the power of the trial judge to nonsuit has been exercised and approved for many years in a long line of cases too familiar to need to be referred to. The power to direct a verdict is identical with, and rests upon the same foundation as, the power to nonsuit. When in such cases the trial judge is requested to nonsuit or to direct a verdict, his duty is, as was well expressed by Lord Chancellor Cairns in Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 193, to say whether any facts have been established by evidence from which negligence may be reasonably inferred. If none, there is no case to go to a jury; but if, from facts established, negligence may reasonably and legitimately be inferred, it is for the jury to say whether from those facts negligence ought to be inferred. In performing this function the trial judge must take care not to trench on the peculiar province of the jury to determine questions of fact, and must bear in mind that the question is not whether he would infer negligence from the established facts, but whether negligence can be reasonably and legitimately inferred therefrom by the jury. It follows that, if the real facts have not been established by the evidence but remain in substantial dispute, the trial judge must submit them, and the inferences to be drawn from those which the jury find established, to the determination of the jury. Moebus'v. Becker, 46 N. J. Law, 41; Railroad Co. v. Shelton, (N. J. Err. & App.) 26 Atl. 937. When this request was made, it was obviously impossible for the trial judge to say what facts had been established. The evidence was contradictory to a degree unusual even in cases of this sort. It was impossible of reconciliation, and the real facts could only be determined by the jury settling the credit to be given to witnesses, and weighing and comparing their variant testimony. Under such circumstances it would have been error to withdraw the case from the jury.

The argument in behalf of the plaintiff in error is next addressed to an exception taken to the ruling of the trial judge upon a request to charge. To make the request intelligible, it should be stated that the evidence of defendant in error in respect to the mode in which she received her injury was that she was struck and run over by a car of plaintiff in error, propelled by electricity, and running on the west-bound or north street-car track in Springfield avenue, in Newark; that, when struck, she was crossing the avenue from south to north on a cross walk at the intersection of Prince street with the avenue; that an east-bound car running on the south street-car track had stopped upon the crossing, and she had waited until it passed, when she went on, "looking both, sides;" that, not seeing any westbound car, she stepped on that track, and was immediately struck and run over. It appeared by the evidence of witnesses called by her that the east-bound car stopped at the crossing and went on, and the westbound car passed it, running at great speed, and without giving signals; one witness estimated the speed at 15 miles an hour. The request in question was as follows: "If the jury believe the account of the plaintiff and her witnesses as to the fact that one car stopped at Prince street and passed the other below that street, it was the duty of plaintiff to wait long enough before crossing to allow the down car to pass far enough for her to see whether another was coming; and if she neglected that duty she was guilty of contributory negligence, and cannot recover, although, the jury may believe that the up car was going at an unusual rate of speed,—the track being straight, and the car visible far enough to avoid it at any possible speed." The judge declined to charge in that respect otherwise than he had charged, and this exception was taken. The request is open to criticism as asserting a fact respecting the distance at...