Searles v. Elizabeth, P. & C. J. Ry. Co.

• Decision Date: 24 February 1904
• Citation: 70 N.J.L. 388,57 A. 134
• Parties: SEARLES et al. v. ELIZABETH, P. & C. J. RY. CO.
• Court: New Jersey Supreme Court

57 A. 134

70 N.J.L. 388

SEARLES et al.

v. ELIZABETH, P. & C. J. RY. CO.

Supreme Court of New Jersey.

Feb. 24, 1904.

(Syllabus by the Court.)

Action by Myra R. Searles and husband against the Elizabeth, Plainfield & Central Jersey Railway Company. Judgment for plaintiffs. Rule to show cause made absolute.

Argued November term, 1903, before GUMMERE, C. J., and DIXON, SWAYZE, and HENDRICKSON, JJ.

Craig Marsh, for plaintiffs.

Frank Bergen, for defendant.

HENDRICKSON, J. The plaintiffs in this case, who are husband and wife, brought suit against the defendant company for damages resulting from a collision between a carriage in which the wife was riding and the defendant's trolley car. The carriage was overturned, and the wife sustained severe bruises of the head, limbs, and spinal column. The trial was had at the Union circuit, and the jury awarded as damages to the wife $12,000, and to the husband $3,000. A rule to show cause was allowed by the trial judge. The grounds relied on in the application for a new trial are (1) that the verdicts were against the weight of the evidence; and (2) that they were excessive.

Under the first ground, the contention is that negligence on the part of the defendant was not shown. The accident occurred at the intersection of Madison avenue and Fourth street, in the city of Plainfield. For convenience, I will refer to the wife as plaintiff. She was riding in a buggy with her sister, who was driving along Madison avenue in a southerly direction; and, as they approached Fourth street, which runs east and west, along which ran the defendant's railway, the driver halted, as plaintiff's witnesses testify, when the horse was about 20 feet from the track, and the driver looked east to Arlington avenue, distant about 205 feet, and saw no car, and then looked west, and saw no car, but saw a lumber wagon approaching the crossing rapidly from that direction. She then started to cross with her horse on a slow trot across the track. There was evidence also tending to prove that, when the car was 200 feet away, the horse was within 20 feet of the track, and in plain view from the motorman's position. The evidence of the driver and the plaintiff is that while in the act of crossing, and when the horse and the two front wheels were over the track, they heard a noise to the left, and looked, and the car was virtually upon them, and immediately struck the hind wheels of the buggy, causing its overturn. As to the speed of the car, one or more witnesses described it as rapid, and one as about seven miles an hour, while the motorman described it as "a pretty good speed," which he designated as "ordinary speed." The motorman further testified that when the car was about 40 feet from the crossing he first saw the carriage, and that then the driver held up her lines as if she meant to let him pass; that he then put on his brake and reversed the power, stopping the car as quickly as he could. The car went over the middle of the avenue before it was brought to a stop.

Do the facts in evidence present a case for the jury? It is contended for the defendant that the car must have been in sight when the driver looked, and that the failure to see cannot aid the plaintiff in proof of negligence against the company; citing P. R. Co. v. Righter, 42 N. J. Law, 180. But the fact here assumed is at least debatable. There was evidence that the defendant's car, at the rate of seven miles an hour, would make the distance in 25 seconds. So it is quite probable that the car may not have been in view when the driver looked. The law cited had relation to the question of contributory negligence in approaching a steam railroad. Neither of these conditions exist in the present case. The question of contributory negligence does not arise, because the plaintiff was only a passenger in her sister's buggy at the time of the collision. The trolley has no supreme right to the use of the public street. Woodland v. Street Railway Co., 66 N. J. Law, 455, 49 Atl. 479. And it cannot be run at a rate of speed incompatible with the lawful and customary use of the highway by others with reasonable safety. Railway Company v. Block, 55 N. J. Law, 605, 27 Atl. 1067, 22 L. R. A. 374. Due care on the part of the motorman in approaching this crossing required that he should have his car under such control that the safety of the careful traveler thereon would not be endangered. Traction Company v. Glynn. ...