Nolan v. Pub. Serv. Ry. Co.

• Decision Date: 24 February 1926
• Docket Number: No. 54.,54.
• Citation: 132 A. 237
• Parties: NOLAN v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

132 A. 237

NOLAN

v. PUBLIC SERVICE RY. CO.

No. 54.

Supreme Court of New Jersey.

Feb. 24, 1926.

Appeal from Circuit Court, Hudson County.

Action by Annie Nolan against the Public Service Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued October term, 1925, before GUMMERE, C. J., and KALISCH and CAMPBELL, JJ.

Joseph Coult, of Newark, for appellant.

Robert H. Doherty, of Jersey City, for respondent.

PER CURIAM. The plaintiff was a passenger on a trolley car of the defendant company. The proofs offered in her behalf showed that, as she was in the act of alighting from the car, the step was raised, throwing her to the ground and injuring her. The trial resulted in a verdict in her favor, and the defendant appeals from the judgment entered thereon.

The only ground of appeal is directed at the following excerpt from the charge of the court to the jury:

"After you have determined the facts, and if you find from them that there was negligence on the part of the defendant company, and that the plaintiff herself was free from contributory negligence, then you must return a verdict for the plaintiff."

We are told by counsel that this instruction left out a very material factor; namely, that the negligence of the company, if it was found, must have been the proximate cause of the injury. But the excerpt recited is only a portion of the instruction upon the subject of negligence on the part of the defendant and contributory negligence on the part of the plaintiff; the court having already told the jury that, in order to recover, the plaintiff must show that there was negligence on the part of the defendant causing the accident, and also that she herself, at the same time, was free from any contributory negligence, and that these two elements were necessary to the plaintiff's case. That instruction is to be read as a whole, and, when so read, is accurate, so far as the criticism directed against it is concerned.

The judgment under review will be affirmed.