Zolpher v. Camden & S. Ry. Co.

• Decision Date: 18 June 1903
• Citation: 55 A. 249,69 N.J.L. 417
• Parties: ZOLPHER v. CAMDEN & S. RY. CO.
• Court: New Jersey Supreme Court

55 A. 249

69 N.J.L. 417

ZOLPHER

v. CAMDEN & S. RY. CO.

Court of Errors and Appeals of New Jersey.

June 18, 1903.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Anton Zolpher against the Cam den & Suburban Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Joseph H. Gaskill, for plaintiff in error.

Howard Carrow, for defendant in error.

SWAYZE, J. The plaintiff, while riding a bicycle upon the track of the defendant in advance of an approaching car, was struck by the car and injured. He had been riding on the right-hand side of the street until he came to a pile of stones which obstructed his passage. He then turned on the track. There was a high wind and considerable dust. While he was on the track the wind came against him so strong, as he testified, that he had to get off. He did not then look around. As he put his foot on the ground, the car struck him, and dragged him, he says, for about 40 feet. There was testimony that no warning was given of the approach of the car. He was a few feet in advance of the car when he went on the track. The estimates vary from 12 to, 20 feet. There was testimony to the effect that the car was going quite fast. A motion to nonsuit was refused.

Taylor, a witness for the defendant, testified that he was on the front platform; that he shouted to the motorman, "Look out! there is a man," and the motorman immediately gave two sharp sounds of the gong; that the plaintiff was not over 12 feet from the car when he went on the track; and that the car, when it struck him, was going at the rate of 5 miles an hour. He was asked on cross-examination why it was necessary for him to call the motorman's attention to the fact of the plaintiff's being on the track, and he answered: "Why, what would I do—stand there and let him run over him?"

The relative rights of the plaintiff and defendant in the use of the highway are settled. Camden, Gloucester & Woodbury Railway Co. v. Preston, 59 N. J. Law, 264, 35 Atl. 1119; Consolidated Traction Co. v. Haight, 59 N. J. Law, 577, 37 Atl. 135; Hughes v. Camden & Suburban Railway Co., 65 N. J. Law, 203, 47 Atl. 441.

The question is whether the motorman if he had been running his car at a reasonable rate of speed, could, by the exercise of ordinary care, have stopped it in time to avoid the collision. The answer must depend upon the distance which the car bad to go at the time the motorman saw, or ought to have seen, the bicycle upon the track in front of him. If that distance is so small that the motorman could not, by the exercise of ordinary care, have stopped the car, if he was running at a reasonable rate of speed, the defendant is not liable. If that distance was sufficient to allow the motorman, by the exercise of ordinary care, to stop a car running at a reasonable rate of speed, the failure of the motorman to stop subjects the defendant to liability. In the present case the jury had the right to believe the testimony of the plaintiff that he had gone 20 feet along the track before he was struck. If so, the motorman had at least that distance in which to check, and, if necessary, stop, his car. We think it was a question for the jury whether a failure to stop in that distance established negligence. Even if the motorman did all...