91 N.J.L. 581 | N.J. | 1918
The opinion of the court was delivered by
This is an appeal by the defendant below from a judgment in favor of the plaintiff, entered upon the verdict of á jury, in an action for injuries received in a collision between the defendant’s trolley car and the plaintiff’s automobile at the Anderson avenue crossing of the defendant’s tracks in the town of Fort Lee.
The grounds of appeal relate solely to. the charge of the court.
We.are of the opinion that it was not erroneous.
First, the defendant complains that the judge instructed the jury in effect that the defendant would be guilty of negligence if in the operation of its car it violated the provisions of the Traffic act requiring the motorman of a street car on approaching street crossings to sound his signal hell.
Speaking with respect to the duty of the 'defendant company in tile operation of their cars the judge said:
“The general rule is that they must use reasonable care, or, as it is otherwise put, they must use that care which a reasonably prudent person would or should exercise, considering time, place, circumstances and conditions, so that they will not bring harm to other users of the public highway.”
He then stated that the Traffic act (Pamph. L. 1915, p. 292, § 8, subd. 3) provides that: “The motorman or driver of any street car, on approaching road intersections or street crossings, shall sound his signal bell in quick succession at a reasonable distance from such intersection.”
He then put to the jury these questions:
“Has the plaintiff satisfied you by a fair preponderance of the evidence that the servant of the defendant company, namely, the motorman, was negligent in the manner in which he propelled, moved or conducted the operations of this car? Was he negligent under that rulo and this provision of the statute which I have just read to you?”
He, of course, further charged that “if the plaintiff has not made that out you need not go any further,” but “if he has made it out, the'next question for your determination is, lias lie made out also by a fair preponderance of the evidence that that negligence which he has made out was the proximate, natural cause of this happening of which the plaintiff complains ?”
It is quite plain, therefore, that the judge did not charge that the defendant would bo guilty of negligence if it violated the Traffic act. What he did charge was that the motorman must use reasonable care, i. e., such care as a reasonably prudent man would use in the circumstances presented to him, calling attention to the provision of the Traffic act requiring the motorman to sound his signal hell on approaching street crossings, and expressly stating that it was for the jury to determine whether or not he was negligent “under the rule stated and the provision of the statute.”
The defendant lastly complains that the judge charged in effect that if the plaintiff, without any fault on his part, was placed in a position of imminent peril at the crossing by reason of the negligent manner in which the defendant's motorman operated its car, the law would not hold the plaintiff guilty of such negligence as to defeat his recovery because, by an honest mistake, he chose one course when another course might have been better.
Do fault is found with the rule stated by the judge as an abstract proposition. The complaint is that it had no application to the case. But this complaint is not well founded. The contributory negligence of the plaintiff was put in issue ly the pleadings, and the plaintiff’s evidence, if believed, tended to show that he was put in sudden danger by the negligence of the defendant without any fault on his part, and it was therefore proper for the judge to instruct the jury as to the legal effect of his conduct in trying to extricate himself.
The judgment below will be affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenhiemer, Williams, Taylor, Gardner, J J. 15.
For reversal — Done.