Trimboli v. Pub. Serv. Coordinated Transp.

• Decision Date: 27 September 1933
• Docket Number: No. 4.,4.
• Citation: 168 A. 572
• Parties: TRIMBOLI v. PUBLIC SERVICE COORDINATED TRANSPORT et al.
• Court: New Jersey Supreme Court

168 A. 572

TRIMBOLI

v. PUBLIC SERVICE COORDINATED TRANSPORT et al.

No. 4.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1933.

Appeal from Supreme Court.

Action by Geraldine Trimboli, administratrix ad prosequendum of the estate of Samuel Trimboli, deceased, against the Public Service Co-ordinated Transport, and Frederick J. Goeckel. From judgments of nonsuit entered in the Supreme Court after a trial at the Essex Circuit, the plaintiff appeals.

Judgments affirmed.

William Herda Smith, of Newark, for appellant.

Henry H. Fryling, of Newark, for respondent Public Service Co-ordinated Transport.

Lum, Tamblyn & Colyer, of Newark, for respondent Goeckel.

WELLS, Judge.

This appeal is from judgments of nonsuit entered in the Supreme Court after a trial at the Essex Circuit.

The action was brought by the plaintiff, as administratrix ad pros, of the estate of her deceased husband, who was killed in a collision with a truck owned by the defendant Frederick J. Goeckel, while alighting from a trolley car owned by the defendant Public Service Co-ordinated Transport.

At the conclusion of the plaintiff's case there was a motion to nonsuit in behalf of the Public Service Co-ordinated Transport on the ground that there had been no negligence shown on the part of that defendant, and on the further ground that there had been contributory negligence shown on the part of the decedent, and also on the further ground that the decedent assumed the risk in alighting from a moving trolley car. There was likewise a motion made on behalf of the defendant Goeckel on the same grounds. Both motions were granted by the trial court, and the propriety of these rulings is the only question raised on this appeal.

The evidence submitted on behalf of the plaintiff disclosed the following state of facts:

The deceased, Samuel Trimboli, on the morning of August 25, 1930, was a passenger on the Public Service Co-ordinated Transport trolley car, which was proceeding in a southerly direction on Elizabeth avenue, Newark, and when it approached Hunter street, which empties into Elizabeth avenue from the east, but does not cross it, the motorman gradually decreased the speed of the car for the purpose of making a stop opposite Hunter street. Prior to the making of the stop and while the trolley car was traveling at about three or four miles per hour, the door being open, the step down, the deceased stepped off the trolley car while it was thus moving slowly, and the trolley car proceeded three of four paces before it came to a stop. Upon alighting from the trolley car, the deceased stepped on the pavement and took two, three, or four steps toward the sidewalk, when he was struck by or collided with the left front fender of the Goeckel truck, which was also proceeding in a southerly direction on Elizabeth avenue, parallel with the trolley car, at a speed of twenty to twenty-two miles per hour. The truck was from two to six feet from the side of the trolley car and only a few feet behind the front trolley car step when decedent alighted. The truck went a distance of sixty to seventy feet south on Elizabeth avenue before it came to a stop.

There was testimony to show that the brakes of the truck were not in good condition and that the truck driver gave no warning of its approach and that it did not slacken its speed as it overtook and passed the trolley car.

The appellant bases her contention that the granting of a nonsuit to the Public Service Co-ordinated Transport was error on the fact that the defendant corporation owed a high degree of care for the safety and protection of its passengers when boarding and alighting from its trolley cars, and that in disregard of that duty, the motorman pre maturely opened the exit door, thereby inviting the decedent to alight before bringing the car to a complete stop and thereby placing him in a position of danger, and that he further neglected a duty imposed upon him to make proper observations for vehicles on the highway when discharging passengers, and that he failed to observe the truck in question and to warn the decedent of its approach, and that the defendant corporation was, therefore, liable and contributed to the accident.

The case of Alexander v. Matteucci et al., 135 A. 820, 5 N. J. Misc. 183, is cited and relied upon by appellant. The Supreme Court in that case held that Matteucci, the owner of a jitney bus, who stopped within two feet of the track of a street railway and allowed a passenger to alight without warning him of the approach of a trolley car which struck her before she crossed the track, was guilty of negligence and that the passenger under the facts testified to in that case was not guilty of contributory negligence in alighting on the track where she did not know of the approach of the street car which struck her before she crossed the track. The Matteucci Case is not in point, because Matteucci saw the trolley car approaching from an opposite direction for a distance of five hundred feet before the accident, and though it was coming at a speed of thirty miles per hour, sounding no alarm, Matteucci stopped the bus so that its body was within...