60 N.J.L. 193 | N.J. | 1897
The opinion of the court was delivered by
The facts not disputed at the trial were that the plaintiff was a passenger upon a trolley ear of the defendant; that he desired to leave the car at Newbold, a small village between Gloucester City and Woodbury; that the car passed Newbold and had gone a short distance when a conversation took place between the plaintiff and the conductor of the car, as the result of which the former left the car and walked back upon the defendant’s right of way, which was not a public road; that he came to a trestle that carried the rails of the car tracks over a piece of low land; that he was walking the ties laid on this trestle when a car, coming from the direction in which he was walking, struck him and knocked him from the trestle to the ground.
The gravamen of the plaintiff’s action was that the conductor carried him past Newbold, although notified that he wished to be let off at that place, and then directed him to walk back upon the track to Newbold, and that in so doing he was caught upon the trestle and injured in the manner above described.
In this state of the proofs the defendant, at the close of the plaintiff’s case, moved for a nonsuit upon the ground that no cause of action against the company had been shown. The contention of the defendant was that it had been guilty of no negligence at the time the plaintiff left its car and voluntarily ceased to be a passenger, and that the conductor’s direction to the plaintiff to walk back on the track, was gratuitous advice given to a pedestrian and not an act done as the representative of the carrying company.
On the other hand, it was argued by the plaintiff that it was negligence in the conductor to carry him past Newbold
The testimony for the defendant raised an issue of fact with respect to the instruction given by the conductor to the plaintiff. The language of the conductor upon the witness-stand was as follows:
“Q. Had he [the plaintiff] spoken to you on the subject before that ?
“A. Hot to my knowledge; I said to him, 'My dear friend,, we are by Hewbold; you should have told me before, but,’ I says,' however, as we have carried yon by, you stay on the car, and when we meet the up-bound car I will put you on it and send you back to Hewbold, which won’t cost you anything;’ no; he insisted upon getting off the car; I stopped the car and he stepped off; 'How,’ I said, 'there is a trestle-road that we have just crossed, and there is a road around the bank; now, don’t dare to cross the trestle-work, because-it is dangerous; a car going in either direction might hit you;. there is a road going around the bank; be sure and take-that.’ ”
With reference to this- version of the affair, the jury was-instructed by the trial court in this language:
“ If you believe that, notwithstanding what the conductor told him—notwithstanding the instructions he had from the-conductor to go back on that track—if you believe the conductor said so, and you think, as a prudent, sensible man, he had no right to take those instructions and go on that track, that is a question for you to say, and if you say so, then he-cannot recover. It is a question for you to decide, notwithstanding all that happened, was he protected, clearly protected, by the statement or direction of the conductor to go ?' If you say that, as a sensible man, in spite of everything, instructions or not, he was careless to go there at all, you will say it, and he ought not to recover.”
“But if the conductor told him, as the conductor says he ■did, not to go on or cross that trestle, he could not take the risks of being killed or injured, and treat his instructions lightly, and recover for injuries resulting therefrom. But if, ■notwithstanding his instructions, he went there seeking for a way out of his then serious predicament, and found, after ■going some distance, that it was really a dangerous place, and, as he saw the light of an approaching car, then undertook to return, trying to save himself as best he could, finding, perhaps, that he had been misled and trapped at that instant, and, while making efforts to escape and save himself, was overtaken by the car on the track and hit, it is then a question for you whether or not he had done what a reasonably-prudent man could do, situated as he was, and had taken the precautions that a reasonable and prudent man could be ■expected to take in his predicament. That is a question for you.”
These instructions left to the jury the question whether the plaintiff was guilty of contributory negligence if he failed to take the road the conductor directed him to travel, and went ■upon the trestle in the face of a specific warning of the •danger of so doing.
In this there was error.
If the direction given to the plaintiff was that testified to By the conductor, he disobeyed it at his peril, and there was neither liability on the part of the company nor right of recovery to the plaintiff.
Upon another point, also, there was error. The defendant requested the court to charge :
“ That it was not carelessness on the part of the motorman ¡not to anticipate the presence of the plaintiff on the trestle where he was at the time the car approached him.”
In response to this request, the court, in effect, left it to the jury to say whether reasonable care on the part of the motorman would not have enabled him to avoid striking the plaintiff on this trestle, and that if it would, he was negli
The judgment of the Supreme Court is reversed, in order that there may be a venire de novo.
For affirmance—None.
For reversal—The Chief Justice, Collins, Depue, Garrison, Gummere, Lippincott, Yan Syckel, Bogert, Dayton, Hendrickson, Nixon. 11.