Van Ness v. N. Jersey St. Ry. Co.

• Decision Date: 11 November 1907
• Citation: 75 N.J.L. 273,67 A. 1027
• Parties: VAN NESS v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

67 A. 1027

75 N.J.L. 273

VAN NESS

v. NORTH JERSEY ST. RY. CO.

Supreme Court of New Jersey.

Nov. 11, 1907.

Error to Circuit Court, Essex County.

Action by Matilda L. Van Ness, administratrix, against the North Jersey Street Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

Argued June term, 1907, before GUMMERE, C. J., and REED, J.

Edward Kenny, for defendant in error. Hobard Tuttle, for plaintiff in error.

GUMMERE, C. J. This suit was brought by the plaintiff to recover from the defendant company the pecuniary loss sustained by the widow and next of kin of Levy Van Ness, deceased, by reason of his death. Van Ness was run over and killed by a trolley car of the defendant company while crossing Broad street, in the city of Newark, in front of the First Presbyterian Church, not far from the corner of Market street. The accident occurred about half past 7 at night on the 26th day of May, 1906, while it was yet quite light. According to the proof on the part of the plaintiff, there was a car traveling north, and another one proceeding south, which passed each other at about the place of the accident. The plaintiff, in crossing the street, came first to the track upon which the northbound car was moving, and waited until it had passed. He then walked across this track, and stepped in front of the south-bound car, which at the time was traveling rapidly, and was only a few feet away from him. He was struck down, and killed almost instantly. At the close of the plaintiff's case, there was a motion to nonsuit, upon the ground, among others, that the facts proved made it clear that the accident was due to the contributory negligence of the deceased. The motion was refused, and in this refusal there was in our judgment error. If Mr. Van Ness bad been at all observant of the situation, he must have known that the southbound car would be so close at hand, after the north-bound car had passed, as to make it dangerous for him to attempt to cross over the south-bound track until after the car upon it had passed by. His action in crossing in front of the south-bound car, if he had this knowledge, was negligent. If he did not have this knowledge, it was because he failed to take the reasonable precaution for his safety which the law required of him. As was stated by this court in Hageman v. North Jersey Street Ry. Co. (N. J. Sup.) 65 Atl. 834, it is the duty of a foot passenger crossing a street containing car tracks to use his...