Scott v. The Bergen County Traction Company

• Citation: 63 N.J.L. 407,43 A. 1060
• Decision Date: 12 June 1899
• Court: New Jersey Supreme Court
• Parties: ELIZABETH R. SCOTT AND WILLIAM H. SCOTT, PLAINTIFFS BELOW, DEFENDANTS IN ERROR, v. THE BERGEN COUNTY TRACTION COMPANY, DEFENDANT BELOW, PLAINTIFF IN ERROR

43 A. 1060

63 N.J.L. 407

SCOTT et al.

v. BERGEN COUNTY TRACTION CO.

Supreme Court of New Jersey.

July 8, 1899.

(Syllabus by the Court.)

Error to circuit court, Bergen county.

Action by Elizabeth R. and William H. Scott against the Bergen County Traction Company.Judgment for plaintiffs.Defendant brings error.Affirmed.

Argued February term, 1899, before MAGIE, C. J., and GARRISON, LIPPINCOTT, and COLLINS, JJ.

P. W. Stagg and Ernst Koester, for plaintiff in error.

Warren Dixon and John P. Stockton, Jr., for defendants in error.

LIPPINCOTT, J.The action in this case was for damages to the plaintiffs below because of the personal injuries inflicted upon the wife.The defendant operates an electric street-car route in the county of Bergen for the carriage of passengers.It appears from the testimony on the part of the plaintiffs that Mrs. Scott, on April 13, 1897, took a car of the defendant at Undercliff Ferry to go to a crossing at Coytesville, there to change cars for her home at Undercliff.She says she paid her fare to the conductor, and told him to let her off at the crossing.As the car was approaching the crossing, the conductor rang the bell,—as she supposed, for the car to stop,—and as the car slowed down, she, with a small basket in her hand, arose from her seat in the car, and went to the rear platform, to await the stoppage of the car, and while so waiting on the platform the car gave a lurch forward, and she was thrown off to the ground, upon her face, and injured.She testifies that the car was going very slowly as she was proceeding to the platform and while she was standing on it.She says she thought the car had come to a standstill when the lurch forward took place, and threw her off.She says the conductor was standing on the platform and she thought it was all right to stand there, for, if it was not, he would have said so.She had a small basket in her hand, and she did not have hold of the hand rail of the car.The fact of having the basket in her hand did not prevent her taking hold of the hand rail.There is some evidence in the plaintiffs' case that, if she had taken hold of the hand rail, it might have saved her from falling.She says she expected no such lurch, and therefore did not take hold of the hand rail, and in fact her attention was not attracted to it.Another witness on the part of the plaintiffs saw Mrs. Scott standing on the platform, and describes the motion as a sudden increase of the speed of the car, and then Mrs. Scott fell off.This witness says there was another car just ahead, stopping and starting suddenly, and that this car was following in the same manner.This is the substance of the evidence in behalf of the plaintiffs, except as to injuries and damages suffered.A motion to nonsuit was made on the single ground of the contributory negligence of Mrs. Scott.This was refused, and an exception taken to the refusal, and sealed.The only reason for this motion would appear to be that the plaintiff Mrs. Scott failed to take hold of the hand rail on the platform of the car.But, even if this fact appeared with entire clearness, it was a fact for the jury only, as bearing upon the question of whether a failure to take hold of the hand rail was the exercise of ordinary care, for her own safety.It was not negligence per se not to do so, and under all the circumstances it may have been reasonable care for her not to do so, even if her attention had been attracted to it.She was not bound to anticipate, as this car was slowing down to stop, that it would suddenly lurch forward, and prepare herself for that unusual occurrence, without some warning or apprehension of such a danger.What the plaintiff was bound to do, under all the circumstances, in the exercise of ordinary care was a question for the jury.What is ordinarily done under such circumstances is a question for the jury.Watson v. Railway Co. (lie.)40 Atl. 699.If the evidence of the plaintiff was believed by the jury, then such a case...