Tovey v. Pub. Serv. Ry. Co.

Decision Date29 March 1915
Citation95 A. 265
PartiesTOVEY v. PUBLIC SERVICE RY. CO.
CourtNew Jersey Supreme Court

Action by Winifred E. Tovey, as administratrix, against the Public Service Railway Company. Verdict was directed for defendant, and plaintiff obtains a rule to show cause. Rule discharged.

Argued before TRENCHARD BERGEN, and BLACK, JJ.

French & Richards, of Camden, for the rule. Lefferts S. Hoffman, of Newark, opposed.

PER CURIAM. This case was tried before Judge Howard Carrow at the Camden circuit on March 7, 1914. The trial resulted in the direction of a verdict in favor of the defendant at the end of the case. The trial judge refused to grant a nonsuit, but did direct a verdict for the defendant, on the ground of contributory negligence. The evidence showed that at the place of the accident it was open country, and that the plaintiff's intestate walked directly in front of the car, which caused his death. A rule to show cause was obtained why a new trial should not be granted, based upon newly discovered evidence; both parties having leave to take testimony to be used upon the hearing of this rule. The plaintiff now urges that a new trial should be granted, not only upon the record as made at the trial, but also upon the testimony which was taken under the rule and now presented to the court for consideration.

As to the first ground, we are satisfied with the determination of the trial judge. The record at the trial amply supports his conclusion, viz.:

"The undisputed evidence in the case is that the intestate came from an obscure place in the road upon the trolley tracks within about 10 feet of the trolley car, without looking in the direction of the car."

The accident occurred at about midnight near the Pensauken bridge, the bridge over the Pensauken creek, which is the line between the counties of Camden and Burlington. The lights in the trolley car were burning.

As to the second ground, viz., newly discovered evidence, reliance is placed upon the evidence of a witness, David Nevyas:

"Q. In what part of the car were you at the time he was struck? A. I was on the front platform. Q. About how far away was it that you first saw Mr. Tovey? A. About 500 feet. Q. And where was he at that time? A. Why, he was walking across the bridge. Q. Did you do anything in the way of assisting him (i. e., the motorman) to bring the car to a stand? A. I reversed the car."

On March 8, 1913, in a signed statement, this witness said:

"I have no knowledge as to how the...

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