Public Service Ry. Co. v. McMahon

• Decision Date: 20 June 1921
• Docket Number: 2662.
• Parties: PUBLIC SERVICE RY. CO. v. McMAHON.
• Court: U.S. Court of Appeals — Third Circuit

273 F. 679

PUBLIC SERVICE RY. CO. v. McMAHON.

No. 2662.

United States Court of Appeals, Third Circuit.

June 20, 1921

Lefferts S. Hoffman and Joseph Coult, Jr., both of Newark, N.J., for plaintiff in error.

McDermott & Enright, of Jersey City, N.J. (James D. Carpenter, of Jersey City, N.J., of counsel), for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

This action for damages arose out of a collision between the plaintiff's auto-van and a trolley car of the defendant railway company. The trolley car was traveling on Jersey Avenue in the City of Elizabeth; the auto-van was either entering Jersey Avenue from Farragut Way, an intersecting street, or, it had already entered the avenue and was moving on the car tracks about a block distant from Farragut Way when it was struck in the rear by the trolley car.

The main dispute at the trial, arising from opposite theories of the collision as testified to by witnesses for the respective parties, concerned the precise location of the collision. If at one place, there was negligence on the part of the plaintiff in driving his van out of a side street directly upon and across the trolley tracks on which the trolley car was rapidly approaching; if at the other place, there was negligence on the part of the defendant in causing its rapidly moving trolley car to strike the rear of the plaintiff's auto-van after it had come from the side street, had, in full view, entered upon the railway tracks straightened its course, and traveled thereon for something like a block. Thus on the place of the collision hung the questions of negligence, primary and contributory. This unusual circumstance, it is conceded, justified the submission of the case to the jury; and by the verdict for the plaintiff, it is also conceded, this question of fact and the related questions of negligence are decided.

The main complaint which the defendant makes on this writ is addressed to error in the charge. After instructing the jury on the law of negligence and contributory negligence in form quite usual and in a manner not excepted to, the plaintiff made three requests which the court charged without modification. They were in substance that, if the defendant's negligence was the proximate cause of the accident the verdict must be for the plaintiff; that it was the duty of the defendant to have its trolley car under such control that it could stop it in time to avoid collision with other vehicles 'lawfully in the...