Thomas v. Consol. Traction Co.

• Decision Date: 01 March 1899
• Citation: 42 A. 1061,62 N.J.L. 36
• Parties: THOMAS v. CONSOLIDATED TRACTION CO.
• Court: New Jersey Supreme Court

42 A. 1061

62 N.J.L. 36

THOMAS

v. CONSOLIDATED TRACTION CO.

Supreme Court of New Jersey.

March 1, 1899.

(Syllabus by the Court.)

Action by William P. Thomas against the Consolidated Traction Company. Verdict for plaintiff. Rule to show cause why new trial should not be granted. Denied on conditions.

Argued February term, 1898, before LIPPINCOTT, LUDLOW, and GUMMERE, JJ.

Frederick C. Marsh, for plaintiff.

Frank Bergen, for defendant.

LIPPINCOTT, J. The plaintiff in this action was injured on July 20, 1894, by falling upon a pile of street-car track rails which had been left in the gutter, or alongside the curb, of North Broad street, in the city of Elizabeth, by the defendant company, to be used in the reconstruction of its street railway. He had just left the house of a friend on that street, upon whom he had been making a call. It was after nightfall, and in crossing over the curb and gutter of the street, intending to take the car of the defendant company, he stumbled upon and fell upon the pile of rails. No guard had been placed around the rails, nor had any light or other signal been placed upon it, or near it, to warn passers over the street of its existence, or of its dangers to any one. While the defendant had the right to place these rails upon the street, temporarily, for its use in reconstructing or repairing its track, yet it was its duty to exercise reasonable care to guard the public using the street against the danger of accident to any one in the use of the street; and a neglect of this duty, resulting in injury, was actionable negligence. Upon the evidence in the case, whether the defendant company failed to exercise the legal character of care required to guard and protect persons using this street from injury, and whether, if negligence was established against the defendant in this respect, and whether the injury arose to the plaintiff from such neglect, were all questions properly submitted to the determination of the jury. On the part of the defendant it was insisted that the pile of rails could have been seen and avoided by the plaintiff in the exercise of ordinary care to take care of himself, and therefore he was guilty of contributory negligence, and could not recover. It was shown by the evidence that there were two street lights in the vicinity. One was up and the other down the street. One was about 60 feet away, and the other about 100 feet away. One of the lights stood among the trees on that side of the street. There was evidence tending to show that the pile of rails could have been seen by the aid of these lights. There was other evidence that the pile of rails lay within the shadows caused by the trees, and that the lights did not reveal its presence there. The plaintiff testified he did not see it. He was hastening across the...