64 N.J.L. 316 | N.J. | 1900
The opinion of the court was delivered by
Exceptions to the refusal of the trial judge to nonsuit the plaintiff or direct a verdict for the defendant involve an examination of the evidence in the cause.
The plaintiff was injured on June 12th, 1897, in the terminal station of the defendant’s electric street railway at the foot 'of Exchange Place, in Jersey City, near the ferry to New York. This terminal station was thus arranged and used: inbound cars ran east down York street on a single track and then into the station on four tracks diverging therefrom and curving to the north. In the station the four tracks were parallel with each other and ran northward to the south line of Exchange Place. Thence they converged, crossing the sidewalk and curving to the west until they merged in a «ingle outwardbound track in that street. The cars came to a
The conductor testified that as his car left the station on its outward trip the plaintiff turned and went towards the back of the station. He was next seen, as far as the testimony shows, by a witness called in his behalf and by two called for the defendant, and was then standing between the hotel and a car on the westernmost track that was awaiting the starter’s signal. Its schedule time to arrive was twenty minutes before twelve o’clock at night, and to leave was fifteen minutes before twelve o’clock at night. He was leaning against the hotel or one of the posts of the shed, and had been vomiting. His witness was the motorman of a car that had just come in behind the other and upon the same track. The car ahead started and as it did so the plaintiff slid down to the ground, and his feet went under the rear wheels and were crushed. No negligence is attributable to those in charge of that car, for they had no reason to look for anyone in the place where plaintiff stood, and none to the motorman of the car behind, for he was under no duty to give warning. Nor was there any apparent danger to the plaintiff. He was safe as long as he stood still, and his fall was not due to the car’s starting, but to his own sick or drunken state.
The first count of the declaration, of course, had no support, and the case under the second count was rested solely on the failure to take the plaintiff “ beyond the tracks ” in
As the case may be retried, attention should be called to two incidental errors in the rulings at the trial. One was with respect to the evidence on the trial of the former action. At that trial the plaintiff testified to an entirely different condition of affairs from that developed at the trial now under review. This was his testimony: “I alighted from the car after it stopped; I alighted and walked towards the ferry, and as I was walking up the hill and turned to go to the ferry, a car struck my right leg, threw me to the ground and ran over my foot.” That he so testified, the defendant was permitted to prove, but an offer to prove that at the former trial he produced a witness to corroborate his story, was overruled against defendant’s exception, on the ground that the evidence would be hearsay. Such exclusion was erroneous. The evidence Was competent on a challenge of the bona Jides
The other error was in the inadequate treatment in the charge of the subject of the plaintiff’s alleged intoxication as constituting contributory negligence. The defendant requested the trial judge to instruct the jury that if the intoxication of the plaintiff contributed to the injury as a proximate cause thereof, he could not recover; and again, that if the jury should believe, from the testimony, that at the time of the accident the plaintiff was in a state of intoxication and that such slate of intoxication placed him in such a condition that he was unable and failed to exercise that care and caution required of a sober man, and that by reason of such condition he was injured, then, and in such event, he could not recover. To these requests the sole response in the charge was this: “ Therefore I say to you that the company, in taking charge of that man, if he was in a condition that he could not take care of himself, owed him a duty to take him out to the street or out of a place of danger. Now, did they do that? If they did, then, if he, on account of being in an intoxicated condition or for any
The judgment must be reversed and a venire de novo .awarded.
For affirmance—Ludlow. 1.
For reversal—The Chief Justice, Depue, Dixon, Garrison, Lippincott, Gummere, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh. 12.