Tuttlb v. Atl. City R. Co.

• Decision Date: 17 June 1901
• Parties: TUTTLB et ux. v. ATLANTIC CITY R. CO.
• Court: New Jersey Supreme Court

49 A. 450

66 N.J.L. 327

TUTTLB et ux.

v. ATLANTIC CITY R. CO.

Court of Errors and Appeals of New Jersey.

June 17, 1901.

(Syllabus by the Court.)

Error to supreme court.

Action by Samuel B. Turtle and wife against the Atlantic City Railroad Company. Judgment for plaintiffs. Defendant brings error. Affirmed.

J. Willard Morgan and Charles V. D. Jo line, for plaintiff in error.

Henry S. Scovel and William T. Boyle, for defendants in error.

VROOM, J. The writ of error in this cause brings up the record of a suit brought in the supreme court and tried at the Camden circuit court The defendant, the Atlantic City Railroad Company, maintained a freight yard on the south side of Mechanic street, in the city of Camden; and on the 25th day of September, 1899, while a flying drill was being made, one of the cars was derailed, and dashed across Mechanic street over two curbstones and two trolley tracks, and broke through the front of the house opposite No. 293, belonging to a Mrs. Brennan. At the time of the accident, Mrs. Tuttle, one of the plaintiffs, was on the sidewalk near the Brennan house, and, looking, she saw the car coming across the street at full speed. Becoming frightened at the noise, she started to run, and, when three or four doors below, fell, and injured her left knee. At the close of the plaintiffs' case a motion for a nonsuit was made on the part of the defendant upon the ground that, if any negligent conduct had been proved on the part of the defendant by reason of this car having gotten away from where it belonged, the plaintiff was guilty of contributory negligence in going away from a place of safety to a place of insecurity; that she was at a safe distance from the car, and there was no occasion for her to remove from it. The testimony, however, of the plaintiff was that she was in front of Mrs. Brennan's door, or had just passed it when she saw the car coming over; and it was further disclosed by the testimony that this car, in coming across the street was not running on any track. Is it reasonable, even, to suppose that the plaintiff could have had any means of knowing the direction the car would take? She was rightfully on the street, and the unusual sight of a car crashing across the street at full speed precluded any possibility of reflection as to the best thing to do. Acting under the impulse of fear, she ran, and, just as the car crashed into the Brennan house, she fell. The motion to nonsuit was denied, and the trial resulted in a verdict for the plaintiffs. The real question in issue in the case and to be determined by the jury was whether the plaintiff Mrs. Tuttle, seeing the car approaching at great speed across this street, was justified in running to escape from what she supposed was an imminent danger. In the case of Stokes v. Saltonstall, 13 Pet 189, 10 L Ed. 115, which was an action brought to recover damages sustained by the wife of the plaintiff by the upsetting of a stage coach in which she was a passenger, the question was whether the stage was upset by the negligence of the driver or by the act of the plaintiff and his wife in rashly and improperly springing from it. The court held that: "If the want of proper skill or care of the driver placed the passengers in a state of peril, and they had at that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff was entitled to recover, although the jury may believe from the position in which the stage was placed from the negligence of the driver the attempt of the plaintiff and his wife to escape may have increased the peril, or even caused the stage to upset, and although they also find that the plaintiff and his wife would probably have sustained little or no injury if they had remained in the stage." And in the case of Jones v. Boyce, 1 Starkie, 482, which was an action against a coach proprietor for so negligently conducting the coach that the plaintiff, an outside passenger, was obliged to jump off the coach, in consequence of which his leg was broken, Lord Ellenborough held: "To enable the plaintiff to sustain the action, it is not necessary that he should have been thrown off the coach. It is sufficient if he was placed by the misconduct of the defendant in such a situation as obliged him to adopt the alternative of a dangerous leap, or to remain at a certain peril. On the other hand, if the plaintiff's act resulted from a rash apprehension...