69 N.J.L. 1 | N.J. | 1903
The opinion, of the court was delivered by
This action was brought to recover for personal injury received by the plaintiff under the following circumstances: He was an employe of the Hudson County Gas Company, which, at the time when he received his injury, was engaged in laying a gas main through Summit avenue, in the city of Jersey City. For the purpose of laying the main the company had opened a trench in the street, about four feet wide, between the westerly curbline and the tracks of the defendant company, the east line of the trench being about three feet distant from the nearest rail of the car track. The duty of the plaintiff was to carry pieces of lumber from a point where it was piled to the trench, and there deliver it to other employes, who were at work in the trench, and who used the lumber for the purpose of blocking up the gas main in order to keep it level. It was while engaged in doing this work that he received the injury on account of which the suit was brought. The evidence produced by the plaintiff shows that, for the purpose of delivering these pieces of timber, or braces, to his fellow-workmen, he went upon that part of the street between the trench and the car track, and knelt down there, with his back to the tracks and with one of his feet
At the close'of the plaintiff’s case there was a motion to ■nonsuit, upon the ground that no negligence was shown on the part of the defendant company or its employes, and upon the further ground that it affirmatively appeared that the plaintiff contributed by his own negligence to the injury which he received. This motion was refused, by the trial judge, and the first assignment of error is directed to this refusal.
. Assuming, but not admitting, that it cannot be said; as a ■matter of law, that it is the duty of a street railway company to give notice to persons working in a public highway, in dangerous proximity to its tracks, of the approach of its cars, it is at least a question for the jury, and not the court, whether, when the company assumes such a duty, its failure to perform it in a given instance is not negligence. And that was the situation in the case before us. As has already been stated, it was the custom of the defendant’s employes who were operating its cars to ring a gong when approaching the place where the servants of the gas company were at work.
It is further contended, on the point that no negligence was shown on the part of the defendant or its employes, 'that, in .the absence of proof to the contrary, the gas company is to be
But we do not consider that want of proof on the subject justifies the conclusion that the gas company and its employes were not lawfully prosecuting the work in which they were engaged. In the absence of proof, there is no presumption, either in favor of or against such a conclusion. There 'being-no evidence that the plaintiff was a1 trespasser upon the track of the defendant company, it was not entitled to have its responsibility to him limited to injuries which were willfully inflicted.
■ We conclude, therefore, that it could not have been said, as a matter -of law, at the close of the plaintiff’s case, that there was no evidence upon which the negligence of the defendant company could have been predicated.
Nor do we think, as the case tiren stood, that the trial judge would have been justified in taking it from the jury upon the ground that contributory negligence on the part of the plaintiff had been conclusively shown. Although he was bound to use reasonable care for his o-wn safety, this did not require him to look continuously for the approach of a car. To have done this would have made it impossible for him to perform his work. lie knew that he was in a place where he was safe, except when a car was passing. He knew, too> that it was -the custom, when a car was approaching, for the motorman to ring his gong as a warning; and he had a right to expect that this warning would be given to him. Having looked, when he knelt down near the track, for the purpose of ascertaining whether a car was approaching, it was a question for the jury
The second assignment of 'error is directed at the action of the trial court in overruling a question asked of one of the plaintiffs witnesses upon cross-examination. The witness, having stated that he himself had, on one occasion, been injured by one of the defendant company’s trolley cars, was asked, “Did you present any claim to the company?” and, on •objection being made, the question was overruled. It seems manifest that this question was immaterial. The contention is that it called for an answer which would have shown bias on the part of the witness, thereby affecting his credibility. But the mere fact that he did, or did not, present a claim to the company could not have had any such effect. If the witness had presented a claim, and his claim had been refused recognition, this fact might have tended to show bias; but the question asked did not call for the'disclosure of any such fact. It was properly overruled.
The defendant produced as a witness the motorman who was operating the car which ran over the plaintiff. He testified that, as the car approached the point where the accident happened, the plaintiff was facing him, and appeared to him to see the car. He was then asked by the defendant’s counsel this question: “As you came along, do you know whether this man Daum [the plaintiff] saw you ?” This question was overruled, on the ground that the witness could not know whether the plaintiff saw him, and this ruling is the ground of the third .assignment of error. The trial judge' properly excluded this question. The witness had already testified that the plaintiff appeared to him to see the car, and this was the limit to which he could truthfully go in his testimony. He cou'ld not know, •absolutely, whether the plaintiff did, or did not, see the car.
The fourth assignment of error, and the last which is argued on behalf of the defendant company, is directed at the ruling of the trial judge in excluding a written statement, signed by one of the plaintiff’s witnesses with his mark. The
The assignments of error relied upon by plaintiff in error being without substance, the judgment under review should be affirmed.