State v. Lauer

• Decision Date: 20 March 1893
• Parties: STATE (MENGER et al., Prosecutors) v. LAUER.
• Court: New Jersey Supreme Court

26 A. 180

55 N.J.L. 205

STATE (MENGER et al., Prosecutors)

v. LAUER.

Supreme Court of New Jersey.

March 20, 1893.

(Syllabus by the Court.)

Certiorari at the prosecution of Leslie S. Menger and another against Gustay Lauer to review a judgment of nonsuit rendered by the court of common pleas of Bergen county in an action by the prosecutors against defendant. Judgment affirmed.

Argued February term, 1893, before DEPUE, REED, and WERTS, JJ.

Copeland & Luce, for plaintiffs.

Addison Ely, for defendant.

DEPUE, J. This was an action to recover damages for an injury done to a surveyor's instrument, known as a "transit," consisting of a telescope, compass, Vernier's scales, etc., mounted on a tripod, and standing, when set up in position, about five feet high. The declaration alleges that the plaintiffs were using the instrument; upon a public high way, and that the defendant was driving along the said highway, and then and there did drive his horse and wagon so carelessly, negligently, and unskillfully that by his carelessness, negligence, and want of skill the said instrument was run into, and was thereby greatly damaged At the trial the court nonsuited the plaintiffs on two grounds: (1) That there was no proof of negligence on the part of the defendant; and (2) that the plaintiffs were guilty of contributory negligence in exposing the instrument to danger by leaving it standing in the public highway.

The place where the occurrence happened was in Orient street, in the town of Rutherford. The street is 100 feet wide, with a roadway for vehicles 60 feet wide, from curb to curb, with a strip of macadam 15 feet wide in the middle of the roadway. The instrument was in charge of Worthington N. Jacobus, an employe of the plaintiffs, who, with two assistants, was engaged in surveying a plot of ground situated on the southerly side of the street. The instrument was set up in the middle of the street. One of the assistants was sent with a brush hook to clear away some bushes growing on the plot to be surveyed. Worthington and his other assistant were engaged at the side of the street, along the front of the plot, attending to the details of the work required to be done there. The instrument meanwhile was left standing in the middle of the road, without any one to look after it. The instrument had been left thus standing in the road about five minutes when the defendant came along in his wagon, and ran into it. The shaft of the wagon, coming between the legs of the instrument, pushed it over, and injured it. The defendant was driving slowly. He stopped his horse and turned around, immediately after the mishap, and said he did not notice the instrument. There was no contention on the part of the plaintiffs that the defendant's act was willful, and the only proof of negligence was that at the time of the collision, as he was driving along, he was looking at some houses then being built on the side of the street, for the roofing of which he had contracted; that he was driving along at a slow pace, looking at the roofs to see whether the slaters were getting them finished. Worthington testified that, while setting up the instrument, he noticed the defendant down the road, but at that time he did not notice that the defendant was coming on, and that, not having occasion afterwards to look at the street, the witness did not know that the defendant was coining up the street towards him; that, when the witness saw the defendant, he was about 500 feet from the place where the instrument was set.

The instrument, standing in the traveled way of a public street, was a nuisance. It was left standing in that place without any one in charge to look after it, and warn persons lawfully using the public street of its presence there; and Jacobus knew that the defendant was in the street, with his horse and wagon, and might have occasion to pass that part of the street. It was an act of negligence in Jacobus to leave the instrument in the street, without any one to look after it and care for it.

To sustain the plaintiffs' right to recover damages notwithstanding the instrument was negligently exposed to liability to injury in the manner in which this injury was received, counsel rely upon the much-canvassed case of Davies v. Mann, 10 Mees. & W. 546, and Radley v. Railway Co., L. R. 1 App. Cas. 754. The earliest case in which the doctrine of contributory negligence as a bar to an action was clearly expressed is Butterfield v. Forrester, 11 East, 60, (decided in 1809.) The suit was against the defendant, who had placed an obstruction in the highway, by means of which the plaintiff, who was riding along the road, was thrown from his horse and injured. The plaintiff was riding violently, and did not observe the obstruction. At the trial, Bayley, J., directed the jury that if they were satisfied that the plaintiff was riding along the street extremely hard, and without ordinary care, they should find a verdict for the defendant, which they accordingly did. In denying a new trial, Lord Ellenborough, in the king's bench, tersely stated the principle In these words: "One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action. An obstruction in the road, and no want of ordinary care to avoid it on the part of the plaintiff." The rule of law laid down in Butterfield v. Forrester was expressly approved in Bridge v. Railway Co., 3 Mees. & W. 244; and in Davies v. Mann, Baron Parke said: "This subject was fully considered by the court in Bridge v. Railway Co. where it appears to me the correct rule is laid down concerning negligence, namely, that the negligence which is to preclude a plaintiff from recovery must be such as that he could, by ordianry care, have avoided the consequence of the defendant's negligence." The facts appearing in Davies v. Mann were these: The plaintiff, having tethered the forefeet of the donkey, turned it on the public highway. The roadway was eight yards wide. At the time the donkey was injured it was grazing on the side of the road, and the defendant's team, coming down a slight descent at a smartish pace, ran against it, and knocked it down. The driver of the wagon was then some little distance behind the horses. In commenting upon the charge of the trial judge, Baron Parke said: "The judge simply told the jury that the mere fact of negligence in leaving the donkey on the public highway was no answer to the action, unless the donkey's being there was the immediate cause of the injury, and that, if they were of opinion that it was caused by the fault of the defendant's servant, * * * the mere fact of putting the ass upon the road would not bar the plaintiff of his action." On this assumption the court held that as the defendant might, by proper care, have avoided injuring the animal, he was liable for the consequence of his negligence, though the animal may have been improperly there. Davies v. Mann was decided upon the distinction between a faulty act of the plaintiff, remotely connected with the injury, and his negligence as a proximate cause; taking "proximate" in its legal sense, as signifying closeness of causal connection. Kuhn v. Jewett, 32 N. J. Eq. 648.

Cases in the line of decision with Davies v. Mann simply apply to the plaintiff's conduct, as well as to the defendant's, the maxim, "Causa proxima non remota spectatur." In a collision case, where the tug injured took a course in the direction which gave occasion for a collision with the defendant's steamer. Lord Chancellor Selborne, in the house of lords, said: "Great injustice might be done, if, in applying the doctrine of contributory negligence, the maxim, "Causa proxima non remota spectatur," were lost sight of. When the direct and immediate cause of damage is clearly proved to be the fault of the defendant, contributory negligence by the plaintiff cannot be established merely by showing that if those in charge of the ship had, in some earlier state of navigation, taken a course, or exercised a control over the course taken by the tug, which they did not actually take or exercise, a different situation would have resulted, in which the same danger might not have occurred. Such an omission ought not to be regarded as contributory negligence, if it might, in the circumstances which actually happened, have been unattended with danger, but for the defendant's fault, and if it bad no proper connection as a cause with the damage which followed as its effect." Spaight v. Tedcastle, L. R. 6 App. Cas. 217-219. Davies v. Mann was so understood by Lord Campbell in Dowell v. Navigation Co., 5 El. & Bl. 195-206. In that case the action was by the owner of a collier against the owner of a colliding steamer to recover damages sustained by a collision. The collier was in fault, in that it did not continue to show a light for a reasonable time as it approached the steamer. Lord Campbell, in delivering judgment, said: "The jury must betaken to have found that this fault led to the collision. If it was a proximate cause of the collision, however much the steamer might be in fault, this action cannot be maintained. * * * In a court of common law the plaintiff has...