Woodland v. N. Jersey St. Ry. Co.

• Decision Date: 10 June 1901
• Citation: 49 A. 479,66 N.J.L. 455
• Parties: WOODLAND v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

49 A. 479

66 N.J.L. 455

WOODLAND

v. NORTH JERSEY ST. RY. CO.

Supreme Court of New Jersey.

June 10, 1901.

(Syllabus by the Court.)

Error to the circuit court, Essex county.

Action by Matthew Woodland against the North Jersey Street-Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued February term, 1901, before DEPUE, C. J., and DIXON, COLLINS, and HENDRICKSON, JJ.

George T. Werts, for plaintiff in error.

Samuel Kalisch, for defendant in error.

HENDRICKSON, J. A reversal of the judgment below is asked for because of the refusal of the trial judge to grant a nonsuit at the close of the plaintiff's case. The suit was for damages for personal injuries sustained by the collision of one of the defendant's trolley cars with plaintiff's carriage as he was crossing the highway, from left to right, near the town of Franklin, in Essex county, at about the hour of 11 o'clock on the night of September 14, 1899. Plaintiff resided at Franklin, and had started in his buggy to drive to Paterson. He was going North on Franklin avenue, and, for convenience of travel, had left the right-hand side of the road, and was traveling on the left-hand side. He had just passed beyond Brooks avenue, when he undertook to cross the defendant's tracks, in order to reach again the right-hand side of the road and pursue his journey. His testimony was that he had just turned to cross, and his horse was about stepping over the first rail, when he noticed for the first time a south-bound car, fully lighted, about half a block distant, approaching him. He estimated the distance of the car from him to be 250 feet. He was quite confident that the distance was over 200 feet. He proceeded to drive his horse on a walk across the track, when the car struck the wagon just as the horse had passed the rails. The wagon was overturned, and thrown a distance of 20 feet towards the curb, the horse falling underneath the wagon, and the plaintiff was found entangled in the spokes of a wheel that was suspended above the ground, in an unconscious condition. He was soon afterwards restored to consciousness, and taken home. The three passengers on the car testified that the car was going at the time "very fast," "faster than usual." One of them estimated the speed of the car at the rate of 15 miles an hour, and was confident it was more than the rate of 10 miles an hour. It was insisted below, and has been urged here, that the proofs show that the plaintiff was negligent in continuing to cross, after seeing the car, without making further observations of the car, and without hurrying his horse. There was ground here, probably, upon which to argue negligence to the jury; but can it be said that plaintiff's negligence so clearly appears that the question should have been taken from the jury? Of course, the trolley company can claim no superior right to that of the driver...