Dwyer v. New York, Lake Erie & Western Railway Co.

47 N.J.L. 9 | N.J. | 1885

The opinion of the court was delivered by

Beasley, Chief Justice.

The rule for a new trial of this case should, in my opinion, be made absolute.

The plaintiff’s own negligence was plainly contributory to the injury of which he complains. Accepting as the truth his own statement, when on the witness-stand, of the affair in question, he has no standing, as I think, to call on the defendant to compensate him for the consequences of the accident that befel him. When he says that he placed himself in the midst of a jostling crowd of persons, and that he voluntarily attempted to pass off the boat in that situation, and, on account of the press of such passengers, was unable to see to his footing as he approached the line of separation between the boat and the dock, he manifests most conclusively his own contribution of carelessness as a partial cause of the disaster that occurred. In the case of New Jersey R. R. Co. v. Palmer, 4 Vroom 94, I expressed the opinion that a passenger, in leaving one of these boats, could not, without being •legally culpable, put himself in such a position that for all useful purposes he deprived himself, for the time being, of the use of his eyesight, and time and subsequent reflection have had the effect to confirm me strongly in the conviction of the correctness of that view. The point of junction of the ferry-boat and its dock must of necessity be a point of danger. It is idle to liken the transit over such a place to the passing along an ordinary public thoroughfare, for under ordinary conditions the latter is a place of safety, while the former must of necessity be liable to be perilous, for its safeness is altogether dependent on the exercise of incessant, caution on the part of human agents, which, while man remains the imperfect creature that he is, cannot be entirely trustworthy. I can, looking at the reason of things, see no difference between the man who with his eyes closed crosses a railroad track, trusting his safety to the fact that the flagman is at his post, and him who, waiving the use of his eyes, attempts to pass from one of these boats, concluding that all is right because the gates have been opened. A man’s eyes are the sentinels that usually warn him of the approach to danger, and if he chooses to abandon them it is the general rule of law that he does so at his own cost. In the present case there is no pretence that if the plaintiff'had not put himself in the thick of the crowd of persons who were rushing and pushing their way off the boat that he would not have been easily able to avoid the accident in question. Under such conditions I think he should have been non-suited, and a venire de novo should consequently be •awarded. .