Smith v. Pub. Serv. Corp. of N.J.

• Decision Date: 28 February 1910
• Parties: SMITH v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.
• Court: New Jersey Supreme Court

75 A. 937

78 N.J.L. 478

SMITH

v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.

Court of Errors and Appeals of New Jersey.

Feb. 28, 1910.

Error to Supreme Court.

Action by Samuel Smith against the Public Service Corporation of New Jersey. Judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded.

See, also, 74 Atl. 510.

Alvah A. Clark, for plaintiff in error.

William C. Gebhardt, for defendant in error.

TRENCHARD, J. This writ of error brings up for review a judgment entered for the plaintiff in the Supreme Court on the verdict of a jury at the Hunterdon circuit.

The action was one of tort for negligence. The accident occurred at the corner of Park avenue and Fourth street, in the city of Plainfield. The plaintiff was walking in a westerly direction on the sidewalk on the northerly side of Fourth street. As he was crossing over the crosswalk at the intersection of Park avenue, a trolley car of the defendant company, running in a westerly direction on Fourth street, approached the intersection of the streets. At the same time a horse and wagon, driven at a trot by Augustus Nash, came down Park avenue, going south towards the intersection. When the horse reached the crosswalk where the plaintiff was walking, the driver, seeing the car crossing the intersection, partially checked his horse, when instantly the horse shied slightly to the right and struck the plaintiff, knocking him down and injuring him.

The evidence showed that, measuring from curb to curb, Fourth street is 30 feet wide and Park avenue 35 feet wide. The sidewalks were 10 feet wide. The street railroad in Fourth street is a single-track road, and is laid in the middle of the street. The "stop signal" for cars is 85 feet distant east from the east curb line of Park avenue. There was no clear evidence that the car in question had not stopped there as usual. By reason of the formation of the building at the corner, the driver of the horse, if he had looked, could have seen up Fourth street while still north of the crosswalk. The driver testified that he had the horse under control; but nevertheless the horse passed over the crosswalk into Fourth street, bearing to the right and near the car, before he was stopped. At the close of the plaintiff's case the defendant moved for a nonsuit upon the grounds (1) that there was no proof of negligence upon the part of the defendant; and (2) that the negligence charged was not the natural and proximate cause of the accident.

We think the motion should have been granted. If the defendant is liable at all, it must be upon the theory, set forth in plaintiff's declaration, that the car was negligently driven at a "very rapid and dangerous rate of speed" and without sounding any bell, whereby the horse was frightened and caused to hurt the plaintiff. With respect to the speed of the car, it is clear that negligence cannot be predicated upon that, because there is no proof that it was excessive. On the contrary, it conclusively appeared that the car was under perfect control, and was running at the ordinary and usual speed between stops, under the conditions there present. It is not negligence to run a street car propelled by electricity upon a public highway at a rate of speed which is not incompatible with the lawful and customary use of the highway by others with reasonable safety. Newark Passenger Ry. Co. v. Block, 55 N.J.Law, 605, 27 Atl. 1067, 22 L. R. A. 374.

With respect to sounding the bell, it is true that the proof justified...