State v. Reeves

• Decision Date: 24 March 1896
• Citation: 34 A. 128,58 N.J.L. 573
• Parties: STATE (CONSOLIDATED TRACTION CO. Prosecutor) v. REEVES.
• Court: New Jersey Supreme Court

34 A. 128

58 N.J.L. 573

STATE (CONSOLIDATED TRACTION CO. Prosecutor)

v. REEVES.

Supreme Court of New Jersey.

March 24, 1896.

(Syllabus by the Court.)

Certiorari to court of common pleas, Hudson county; Hudspeth, Hoffman, and Kenney, Judges.

Certiorari by the state, on the prosecution of the Consolidated Traction Company, against Edmund W. Reeves. Affirmed.

Argued at November term, 1895, before GARRISON and LIPPINCOTT, JJ.

Warren Dixon, for prosecutor.

George G. Tennant, for defendant.

LIPPINCOTT, J. This writ of certiorari removes into this court for review a judgment in the court of common pleas of the county of Hudson on an appeal from the district court of Jersey City. The plaintiff below recovered a judgment against the defendant, who is the prosecutor of this writ, for damages resulting from a collision between an electric trolley car, and his horse and wagon, on one of the streets of Jersey City. The prosecutor took an appeal to the court of common pleas. A trial de novo under the statute was had in that court, and judgment for the damages to the horse, wagon, and harness was rendered in favor of the plaintiff below, against the prosecutor, who aheges error in the conduct of the trial, to remedy which he brings this certiorari. The defendant in the action, at the close of the proof on the part of the plaintiff, moved for judgment of nonsuit, on the grounds-First, that the plaintiff had failed to establish the incorporation of the defendant, or that the car which collided with the horse and wagon of the plaintiff was a car belonging to the defendant company; and, secondly, that the plaintiff had failed to establish negligence of the defendant as a cause of the accident and injury; and, thirdly, that the driver of the horse and wagon, who was the servant of the plaintiff, was guilty of negligence contributing to or causing the iccident and injury.

It is evident from the conduct of the trial that the first contention cannot be urged upon the consideration of this court. The evidence on the part of the plaintiff is sufficient to establish, prima facie, the corporate existence of the defendant company, and also that it operated the car which came into collision with the horse and wagon of the plaintiff. Besides, these elements of recovery clearly appear in the evidence adduced on the part of the defendant after the refusal of the trial court to nonsuit the plaintiff. There was no denial in the case of the incorporation of the defendant company, nor that it operated the car in question. The plaintiff was left to such proof as he chose to make on these points, and the evidence is such as to justify the trial court, acting in conformity with established rules of law, in refusing a nonsuit on these grouuds. These reasons for reversal do not appear to have been urged on the hearing of this certiorari, either in the argument or the briefs of counsel.

The other two grounds above stated, upon which the motion for nonsuit was based, and also upon which the defendant requested the direction of a verdict in its favor, have led to an examination of the evidence in the cause, not for the purpose of settling contradictory or disputed evidence, but to ascertain whether there exists any proof which will reasonably and legitimately sustain the trial court in its submission of the case to the jury for their determination. The facts, as they appear in evidence on the part of the plaintiff, show, substantially, that on December 22, 1894, one George Reeves, a brother and employe of the plaintiff, was driving a horse and wagon of the plaintiff on Newark avenue, in Jersey City, on what is known as the "up track" of the defendant company. It appears in the evidence of the plaintiff that Reeves was driving on the tracks because there were banks of snow on either side. A trolley car was behind him, and it sounded the gong as a notice or warning to him to turn off the track to allow the car to pass. The defendant company has two sees of tracks on Newark avenue, and he turned his horse off, and into or upon, or partly upon, what is known as the "down track." The double tracks are quite close to each other. The car which was behind him passed him, and he was about to turn back again when he was prevented by a wagon coming on the up track, just behind the car. He had swung his horse around to get back, when at that moment he saw a car coming on the down track, and ...