Shkets v. Connolly St. Ry. Co.

• Decision Date: 09 June 1893
• Citation: 24 A. 483,54 N.J.L. 618
• Parties: SHKETS v. CONNOLLY ST. RY. CO.
• Court: New Jersey Supreme Court

24 A. 483

54 N.J.L. 618

SHKETS

v. CONNOLLY ST. RY. CO.

Supreme Court of New Jersey.

June 9, 1893.

(Syllabus by the Court.)

Action by Florence Ethel Sheets against the Connolly Street Railway Company to recover for personal injuries, in the Essex county circuit court. Verdict for plaintiff. On rule by defendant to show cause why a new trial should not be granted. Rule made absolute.

Argued November term, 1891, before Scudder and Magie, JJ.

George W. Hubbell, for plaintiff.

E. Q. Keasbey, for defendant.

MAGIE, J. The case exhibits no evidence of negligence on the part of defendant, either in the selection of the driver or the use of the horses employed at the time of the occurrence in question. If the defendant was shown to be liable at all, it must have been in respect to some negligence of the driver at that time. On this subject there was much conflict of testimony, and, while I think it indicates that the occurrence was a mere accident, I am not willing to disturb the verdict of the jury on that account. But, with respect to the claim that plaintiff was incapable of recovery by reason of her contributing to her injury by her own negligence, I have reached a different conclusion. Plaintiff was a child of the age of 10 years, and appears from the evidence to be (as the trial judge told the jury) of more than ordinary intelligence. The trial judge laid down the rule of law with respect to her responsibility with substantial accuracy. She was evidently sui juris, and the jury were told to consider the degree of care and discretion which would be expected from her. The jury found by their verdict that she was not guilty of contributory negligence; in other words, she was at the time of the occurrence in the exercise of that degree of care which would reasonably be expected from a child of that age and intelligence. The overwhelming weight of the evidence to the contrary evinces that the verdict must be attributed to the prejudices or mistakes of the jury. Plaintiff, when struck, was crossing a street by a cross walk, which was intersected and crossed by the street railroad then operated by defendant. The cross walk was not at right angles to the curb or the railroad track, but, in the direction in which plaintiff was going, it made a very obtuse angle with the track in the direction in which the railroad car was coming. The line of approach of the two moving bodies was such that each nearly confronted the other. Under such circumstances, plaintiff, if she had looked in the direction in which she was going, must have seen the approaching horse car. It was impossible not to have seen it. Yet she testifies herself that she did not see it until she was knocked down...