Sharpe v. Public Service Railway Company

• Court: New Jersey Supreme Court
• Writing for the Court: LLOYD, J.
• Citation: Sharpe v. Public Service Railway Company, 137 A. 526, 103 N.J.L. 583 (N.J. 1927)
• Decision Date: 21 May 1927
• Docket Number: 115
• Parties: EDWARD HENRY SHARPE, APPELLANT, v. PUBLIC SERVICE RAILWAY COMPANY, RESPONDENT

137 A. 526

SHARPE

v. PUBLIC SERVICE RY. CO.

No. 115.

Supreme Court of New Jersey.

May 21, 1927.

Appeal from Circuit Court, Essex County.

Action by Edward Henry Sharpe against the Public Service Railway Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Argued October term, 1926, before KALISCH, KATZENBACH, and LLOYD, JJ.

Otto A. Stiefel, of Newark, for appellant.

Joseph Coult, of Newark, for respondent.

LLOYD, J. This is an appeal from a judgment of nonsuit in the Essex circuit court. The plaintiff, Edward Henry Sharpe, brought an action against the Public Service Railway Company to recover damages for injuries to himself and to his motorcycle received in a collision with one of the company's electric cars. At the conclusion of the plaintiff's case the trial judge, deeming the plaintiff clearly guilty of contributory negligence, granted the nonsuit.

It is settled that two questions are always involved where negligence or contributory negligence is alleged. The first is whether the conduct of the person so charged constituted negligence. The second is whether that negligence contributed to the injuries sustained. Under ordinary conditions these questions are for the determination of the jury and not for the court. Smith v. Public Service Corporation, 78 N. J. Law, 478, 75 A. 937, 20 Ann. Cas. 151.

If, however, upon the evidence adduced, it shall clearly appear that such negligence does exist and that it has a causal relation to an injurious accident, the question becomes one of law for the court. N. J. Express Co. v. Nichols, 33 N. J. Law, 434, 97 Am. Dec. 722.

The view taken in the court below that the case as proved by the plaintiff invoked the application of the latter rule was, we think, upon a review of the evidence, justified. The facts as established by the plaintiff and his witness, Smith, developed the following situation: The railway company operates a double line of trackage on First street in the city of Newark. First street runs north and south, and the easterly rail of the north-bound track is 11 1/2 feet from the easterly curb line. The accident occurred between 12 and 1 o'clock in the day on the 25th of April, 1922. The plaintiff was riding a motorcycle, going west on the northerly side of New street (which crosses First street at right angles) at the rate of 7 to 10 miles per hour, and, according to his own testimony, could stop his motorcycle within 6 feet. As he approached the intersection "he kind of looked to the right" and sounded a little exhaust whistle that he had rigged up temporarily on his motorcycle. Without looking to the south in the direction from which the trolley car was approaching he proceeded to cross First street without stopping or reducing his speed. As he neared the north-bound east track his motorcycle ran into the side of the passing trolley car and close to its rear end. His motorcycle was damaged and he himself injured. It further appeared that the trolley car was in plain sight, not only of the plaintiff when he reached the curb line of First street, but also of the witness, who was 50 to 75 feet back of him.

In these circumstances we think, as did the trial judge, that not only is the inference of negligence on the part of the plaintiff irresistibly manifest, but it is equally manifest that but for that negligence the accident could not have occurred. The rights of the parties on the highway were equal, and the fundamental duty of using reasonable care in approaching the intersection rested upon both the plaintiff and the defendant. There was evidence in abundance of the negligence of the defendant's motorman in that he was operating at high speed and without warning. On the other hand there was, as we have said, also conclusive evidence of the failure of the plaintiff to use that ordinary degree of care which if it had been exercised would have saved him from the untoward consequences which resulted.

In the early days the highways were used by pedestrians, equestrians, and drivers of horse-drawn vehicles. The high-powered motor in automobile and trolley car had not yet appeared. The cases involving the operation of the horse-drawn vehicle of necessity dealt with a factor which is not present in the automobile or a motorcycle, namely, the independent volition of the horse, and to some extent this...