96 N.J.L. 308 | N.J. | 1921
The opinion of the court was delivered by
The judgment brought up by the appeal in this case was rendered in an action brought under the Death act to recover the pecuniary loss sustained by the widow and next of kin of James Courtney, deceased, whose death resulted from a collision with a trolley car of the defendant company. The single ground upon which a reversal is sought is that the trial court refused a motion to direct a verdict for the defendant at the close of the case.
It appears from the state of the case sent up with the appeal that the motion to direct a verdict was based upon two grounds—first, that the evidence failed to disclose any negligence, on the part of the motorman operating the car, which was the producing cause of the accident, and second, that it conclusively appeared as a matter" of law that the decedent’s own negligence contributed to the injury which resulted in his death.
The circumstances disclosed by the evidence are as follows: Decedent, with a friend, one Crowley, had attended a wake in the lower part of Jersey City. They remained at the house where the wake was being held until about midnight, and then left to return home. They walked along Wilkinson avenue to the corner of Ocean avenue in order to take a trolley
The questions presented for solution on this state of facts are—first, whether it can be said as a matter of law that the motorman was free from negligence producing the accident, and second, whether contributory negligence on the part of the decedent conclusively appears.
So far as the failure of the, motorman to ring his gong is concerned, it cannot be said that this was an act of negligence which had anything to do with causing the accident. The sole purpose of ringing the gong is to- give notice of the approach of the car, and both the decedent and his companion had knowledge of that fact as fully as if the gong had been rung and they had heard it. But it cannot be said as a matter
Taking up the consideration of the second ground upon which the motion was rested: It seems to us that the question of decedent’s contributory negligence was also one for the jury. fn. considering that question the facts proved, and the legitimate inferences to be drawn from them, must be taken in the light most favorable to the plaintiff. When the decedent observed the approach of: the car it is a fair inference that he assumed that it would slow down as it approached the corner of these two si,reefs and stop, at that point to take on or let off passengers. It may properly be inferred iliat he assumed that the passage of himself and Ids friend across the street, would 'be observed by the motorman, and that the latter would use the appliances of the car to keep it under reasonable control, and to check or stop it, if need be, •in order to avoid running them down. Vrooman v. North, Jersey Street Railway Co., 70 N. J. L. 818; Bauer v. North Jersey Street Railway Co., 74 Id. 624. The question whether, with these inferences in his favor, he exercised reasonable
The judgment under review will be affirmed.