69 N.J.L. 645 | N.J. | 1903
The opinion of the court was delivered by
This is an action brought by an infant, aged five years, to recover damages for being run down by defendant’s vehicle upon a public highway. The gravamen is the careless management of - defendant’s horse, driven by his servant. The case went to the jury and judgment went against the defendant, who has brought this writ of error, contending that the plaintiff should have been nonsuited, or that a verdict for the defendant should have been directed, each of which motions was made and denied.
The plaintiff called but a single witness to testify as to the occurrence—Annie Quinn, a child of thirteen, who was in charge of the plaintiff. The driver of the team, who was called by the plaintiff to prove the defendant’s ownership, was permitted to be cross-examined as to the manner in which the collision occurred, and thereupon gave a version of it that flatly contradicted the testimony of Annie Quinn in that respect. This discrepancy, however, could avail the defendant nothing upon his motion to nonsuit. The trial judge could not ignore the testimony of one of the plaintiff’s witnesses in favor of that given by another, or pass upon their conflicting claims to credibility. The motion has the effect
If from this testimony the jury found, as they might, that the plaintiff had reached the crossing first and was using it at a time when the driver of the approaching vehicle ought to have seen her, and could, by exercising proper care over a horse that was under proper control, have either stopped or turned aside so as to avoid running her down, a case of negligence was sufficiently made out. The dangerous character of public crossings, the rule that gives the person who has commenced to cross a priority of right, and the serious consequences that must flow from the neglect of drivers to approach such crossings circumspectly and in reasonable control of their horses, are all involved in determining the degree of care that would absolve a driver from negligence, when, in point of fact, he has run down a pedestrian at a public crossing.
The age of the plaintiff, while it does not, per se, alter the rule by which the negligence of the driver is to be gauged, is a circumstance to be taken into consideration in measuring the sort of care he was exercising, and in determining what inferences should be drawn from the other facts respecting the accident.
At the close of the plaintiff’s case, and at the end of all of the' testimony, the jury might legitimately have found substantially these facts. The case was so left to them by the charge of the trial court. There was, therefore, neither in the refusal to grant a nonsuit nor in the refusal to direct a verdict, any error on the part of the trial court.
The judgment of the- Circuit Court will be affirmed.