Poole v. Twentieth Century Operating Co., Inc.

• Decision Date: 16 September 1938
• Docket Number: No. 46.,46.
• Citation: 121 N.J.L. 244,1 A.2d 389
• Parties: POOLE et al. v. TWENTIETH CENTURY OPERATING CO., Inc., et al.
• Court: New Jersey Supreme Court

1 A.2d 389

121 N.J.L. 244

POOLE et al.

v. TWENTIETH CENTURY OPERATING CO., Inc., et al.

No. 46.

Court of Errors and Appeals of New Jersey.

Sept. 16, 1938.

CASE, BODINE and DONGES, Justices, and HETFIELD, DEAR, and WELLS, Judges, dissenting.

Appeal from Supreme Court.

Action by Lucille Poole, by her next friend, and another against the Twentieth Century Operating Company, Inc., and another for damages arising out of accident which occurred when the named plaintiff was struck by a taxicab while crossing the street to board a standing trolley car. From a judgment of the Supreme Court, 119 N.J.L. 204, 195 A. 386, affirming a judgment of nonsuit, the plaintiffs appeal.

Reversed, and a venire de novo awarded.

Robert J. McCurrie, of Newark, for appellants.

David E. Feldman, of Newark (Julius B. Cohen, of Newark, on the brief), for respondents.

HEHER, Justice.

In our view the nonsuit was erroneous. There was evidence tending to establish the following matters of fact: The Newark terminal station of the Central Railroad Company of New Jersey fronts on Broad Street. There is a safety, isle directly in front of the station building. It parallels the trolley rails for a distance of approximately 110 feet. Its length— so the proofs disclose—substantially corresponds with the frontage' of the station building. Accompanied by her seven year old daughter, the plaintiff Jessie Poole left the railroad station, intending to board a trolley car at the safety isle. She observed a trolley car receiving and discharging passengers at the northerly end of the safety isle. Proceeding to the curb at a point opposite the standing trolley car, she stopped for traffic observations. A few feet to her left, near the curb, she found a passenger-carrying bus also at a standstill, headed north. Traffic in a northerly direction was halted at this point. The bus driver gave her a signal to proceed toward the safety isle, and, holding the child by the hand on her right, she set out to do so. The point of crossing was "in line with the north end of the safety isle." Looking to the south as she walked, she found a standing automobile to the left of the bus, headed in the same direction. Further observation in that direction as she continued on disclosed no approaching vehicle until she had "cleared" the automobile, when defendants' taxi-cab suddenly, and without warning, came through the intervening space from the south, "traveling fast." She quickly drew back, pulling the child with her, but the taxi-cab came to a stop with the rear right wheel resting on the child's foot. She also received a glancing blow. Tire skid marks on the highway indicated that the speeding taxi-cab had been brought to a stop by the quick application of the brakes. The adult plaintiff testified, without objection, that the taxi-cab "seemed to come from nowhere." And the bus driver, who was deemed a hostile witness, testified, also without objection, that the taxi-cab "was traveling very fast * * * was going fast for traffic." While in some doubt, he "thought" there was a cross-walk at this point. The collision occurred at 5:30 P. M, when traffic was at its peak on one of the busiest of Newark's thoroughfares. Plaintiffs had traversed about two-thirds of the distance between the curb and the safety isle when the collision occurred.

Generally, vehicular operators and pedestrians have a common right to the use of a public highway. Such rights are necessarily relative. In their very nature, they are mutual and coordinate. Their reasonable enjoyment imposes correlative, incidental restraints upon the freedom of action of others; and they are in turn qualified by the same considerations where the exercise of like rights by others are involved. Each is under a duty to respect the lawful rights of others, whether arising by statute or otherwise, and to use care commensurate with the risk of danger in the particular circumstances. And the principle is here applicable that one exercising his lawful rights at a place where the exercise of like rights by others may put him in peril, is obliged to use such care for his own safety as a reasonably prudent man would employ under like circumstances. Newark Passenger Ry. Co. v. Block, 55 N.J.L. 605, 27 A. 1067, 22 L.R. A. 374; McGrath v. North Jersey St. Ry. Co., 66 N.J.L. 312, 49 A. 523; Work v. Philadelphia Supply Co., 95 N.J.L. 193, 112 A. 185; Sakos v. Byers, 112 N.J.L. 256, 169 A. 705.

If the evidence given by the adult plaintiff be credited, she was justified, at the time she proceeded across the highway, in the assumption that traffic had halted to permit of the passage of pedestrians to the standing trolley car, and, by the same token, the operator of the taxi-cab was reasonably put upon notice that pedestrians would make such use of the highway. The trolley car was receiving and discharging passengers at the end of the safety isle—a natural place in the circumstances; and the bus and motor vehicle to her left were stationary. In that situation, it was reasonably to be anticipated that intending passengers would use the highway to reach the trolley car; and so the operator of the taxi-cab was under a duty to make effective observation and use reasonable care for the protection of such users of the highway. More particularly, it was incumbent upon him...