62 N.J.L. 424 | N.J. | 1898
The opinion of the court was delivered by
The plaintiff was knocked down and hurt by one of defendant’s cars and sued for damages, but was non-suited because it appeared to the trial judge that the plaintiff’s own negligence contributed to his injury.
The correctness of this ruling is now under review.
The material facts are these: At a little after nine o’clock on the evening of May 26th, 1892, the plaintiff, then sixty-three years old, left his place of business in Passaic to go on foot to his home in that city. His place of business was east of the line of the defendant’s electric railway, his home was
“ I started for the corner; I looked up and down and did not see any car; about seventy-five or one hundred■ feet, I should say, I looked and saw no car; I went on, and the first thing I knew the car was on me and knocked me down.” -
The following is an extract from his cross-examination :
“Q. When you stepped onto the tracks of the electric railway, did you look back to see whether there was a car approaching? ' ; ■
, “A. Just before, I did.
“Q. Tell us exactly; how far were you from the rail of the street car tracks when you looked?
“A. About'four feet; four or six feet.
“Q. You were then going diagonally across?
“A. Yes, sir.
“Q. Did you turn fully around to look down the track?
UA. I turned around the same as I always do, six times a day; the same as I have always done.
“Q. You did that?
“A. I turned my head the same as anybody would look to see if anything was coming.
“ Q. How far did you look ?
“A. Seventy-five or one hundred feet, I should judge.
“Q. That is merely your estimate now ?
“A. Yes, sir.
“Q. Did you look over your shoulder; you didn’t turn right about and look down ?
“Q. You didn’t?
“A. No, sir.
“Q. Didn’t it occur to you that you ought to make careful' observation, after you had seen the car down there on the track ?
“A. No, sir; I had time enough to go across, half a dozen times. * * *
“Q. I understood you to say that you had reached a point between the two rails of the Paterson Eailway Company, when you were struck by the car ?
“A. About the middle.”
It is to be assumed that the plaintiff moved at the rate of an ordinary walk. Several witnesses were questioned as to the rate of the car’s speed. The plaintiff was asked on direct examination, “Do you know how fast the car was going?” and answered, “I did not have time to see how fast anything was going.” Three of the plaintiff’s witnesses testified on this point. Frederick Lance, a bystander, thought that the .speed was about twelve to fifteen miles an hour. Daniel Harrigan, another bystander, said that the speed was “just usual; a good rate of going.” James W. Haven, the motorman, in answer to the question, “At what rate did you proceed?” said, “At a pretty good speed; not as fast as we had been running; I didn’t put the full power on.”
From the case above detailed the conclusion results that the car, moving at any rate of speed that the jury could have attributed to it under the evidence, must have been so near to the plaintiff, when he looked for it before going on the .track, thát if he had not looked carelessly he would have seen it and have been warned of imminent danger. His failure to see it, and so to receive warning, was therefore due to his own negligence. The result will not be altered if it be supposed that the plaintiff was mistaken in saying that he looked for the .car when he was close to the track. Under the circumstances not to look was negligence. In either view the nonsuit was right.
It is peculiarly true of controversies like this that the defendant’s right to a nonsuit depends on the precise facts of each case. An alteration in the conditions may change the result. The case of Consolidated Traction Co. v. Glynn, 30 Vroom 432, illustrates this and may be usefully compared with the case in hand. There the plaintiff assumed, after waiting two or three seconds, that he could walk from the curb across the track, a distance shown by the record to be eighteen feet and a half, before a trolley car that he had observed approaching him should run a distance of about three hundred feet. Acting upon this assumption, he advanced without again looking toward the car and was struck by it. The trial judge refused to nonsuit for contributory negligence and was sustained by this court. From the facts disclosed in that case it was not clear that the plaintiff’s assumption was unreasonable. The question therefore went to the jury. If we vary the elements of the Glynn case by progressively diminishing the distance that the car had to run and increasing the distance that the man had to walk, we first approach and then cross the line that separates alleged contributory negligence that is debatable by a jury from alleged contributory negligence that is manifest to a judge. For reasons already stated, we think that the situation presented is of the latter class. There is a further difference between the two eases that, upon the authority of West Jersey Railroad Co. v. Ewan, 26 Vroom 574, serves to distinguish them, namely, that in the Glynn case the plaintiff was overtaken by a danger he did not apprehend, whereas in the present case the plaintiff real
It may be said that this view of the subject puts cases like this upon a sliding scale — leaves a trial judge without any simple, convenient rule of universal application other than the general proposition that travelers.on a public highway must exercise due care, and obliges him to decide a motion to nonsuit upon his own judgment as to the particular facts in proof. This is true, but it is no novelty. That it is true results from the nature of the case. Where rights are relative, as they are in a public highway, the rule that governs them must be flexible enough to fit the changes of the relation. It is not a case for a rigid formula.
The judgment of nonsuit is affirmed.
For affirmance — The Chancellor, Garrison, Ludlow, Adams, Hendrickson, Krueger, Nixon, Vredenburgh. 8.
For reversal — Depue, Gummere, Lippincott, Van Syckel, Bogert. • 5.