North Hudson Co. Ry. Co. v. Isley

• Decision Date: 31 March 1887
• Citation: 10 A. 665,49 N.J.L. 468
• Court: New Jersey Supreme Court
• Parties: NORTH HUDSON CO. RY. CO. v. ISLEY.

10 A. 665

49 N.J.L. 468

NORTH HUDSON CO. RY. CO.

v. ISLEY.

Court of Errors and Appeals of New Jersey.

March Term, 1887.

(Syllabus by the Court.)

On error to the supreme court.

Tried in the Hudson county circuit, before Justice Knapp and a jury.

J. C. Besson, for plaintiff in error. M. T. Newbold, for defendant in error.

MAGIE, J. This action was brought to recover damages for injuries received by Isley in a collision between the wagon in which he was riding and a horse car of the railway company. The assignment of errors questions the correctness of the judgment in favor of Isley, on the ground that there was not sufficient evidence to justify the submission of his claim to the jury. On the argument it has been contended that the trial judge ought to have nonsuited Isley, or to have directed a verdict against him and in favor of the company. This contention is first made upon the ground that the evidence did not disclose any negligence on the part of the company. Several witnesses, however, testified that the car was being driven at an unusual rate of speed. One witness, who had opportunity to observe, further testified that the car driver was not looking at the track, but had his head turned as if talking to a man on the other side, and was so inattentive that, although the witness called to him and his hand was on the brake, he made no effort whatever to check the speed of the car. The driver contradicted these witnesses, and testified to a state of facts quite inconsistent with their story. But on this conflicting evidence it is obvious that there was no warrant for withdrawing the case from the jury. On the contrary, it was necessary to submit to them the determination of the question of the driver's conduct; for, if it was what Isley's witnesses testified, he was guilty of negligence in the management of his cat, and that negligence was imputable to the company.

The contention of the plaintiff in error is next urged on the ground that the evidence that Isley contributed to his injuries by his own negligence was so strong as to require the trial judge to nonsuit or to direct a verdict against him. The insistment is that, if Isley's wagon and the horse car were approaching each other on the same track, (as Isley and his witnesses testified,) he did not exercise due diligence and care in avoiding a collision. There is no dispute over the legal rules applicable to the case. They are well settled. The ears of this sort have a right to pass upon their track...