Tompkins v. N. Hudson Ry. Co.

• Decision Date: 28 June 1899
• Citation: 43 A. 885,63 N.J.L. 322
• Parties: TOMPKINS v. NORTH HUDSON RY. CO. et al.
• Court: New Jersey Supreme Court

43 A. 885

63 N.J.L. 322

TOMPKINS

v. NORTH HUDSON RY. CO. et al.

Court of Errors and Appeals of New Jersey.

June 28, 1899.

(Syllabus by the Court.)

Error to supreme court.

Action by Sterling R. Tompkins against the North Hudson Railway Company and others. Judgment for defendants, and plaintiff brings error. Reversed in part '

John I. Weller, for plaintiff in error.

George Holmes, for defendants in error.

GUMMERE, J. Tompkins, the plaintiff, while passing along one of the streets of Hoboken, in front of the door of the stable of the North Hudson Railway Company, was injured by being struck with a bale of hay which was being unloaded from a wagon belonging to the defendant Niver. It appeared from the testimony offered on behalf of the plaintiff that, as he approached the place where the accident happened, he observed that Niver's wagon, loaded with hay, was standing across the sidewalk, backed up to within four or five feet of the stable, and that bales of hay were being unloaded therefrom; that, assuming the process of unloading would be stopped while he went by, he attempted to pass through the space between the rear of the wagon and the front of the stable, and while doing so was struck by one of the bales, which was just then thrown from the wagon by Niver's driver, who was engaged in unloading it. In order to show joint liability on the part of the defendants for the injury received by him, the plaintiff proved that the hay had been purchased by the railway company from Niver; that the wagon had been backed across the sidewalk, in front of the stable door in accordance with instructions from the company, who wished the delivery to be made there for its convenience; and that immediately upon the unloading of the hay upon the sidewalk, it was removed into the stable by the employés of the company. At the close of the plaintiff's case, the trial judge, considering that the facts clearly showed that the conduct of the plaintiff in attempting to pass between the wagon and the building was negligent took the case from the jury, and directed a nonsuit to be entered. This judicial action is alleged by the plaintiff to have been erroneous, and we are now asked to set that judgment aside. It seems to us that, whether the act of the plaintiff, in passing through this narrow way, knowing that the hay was being then unloaded upon the sidewalk from the wagon, was or was not one which a reasonably prudent man would have attempted, was, under the...