62 N.J.L. 514 | N.J. | 1898
The opinion of the court was delivered by
In these actions the respective plaintiffs ■sought recovery in damages for personal injury sustained by the infant plaintiff through alleged negligence of the defendant’s servant and for the resultant loss lo the other plaintiff, father of the infant.' The two causes were tried together in the Hudson Circuit, and the plaintiffs were nonsuited, the trial judge holding that the plaintiffs’ proof showed no negligence of defendant’s servant and did show negligence of the person injured contributing to the injury. Such proof was •as follows: John Kelly, a lad óf twelve years, was injured while attempting to enter as a passenger one of the cars of
“ The car was stopped and Jimmy Moody got on first, and I was just starting; I was not right on when the conductor rang the bell; he seen me, and the car gave a sudden jerk and my foot went under.
“Q. When the car gave a sudden jerk what did it do to you?
“A. It jerked me off on the ground and my foot went under the wheels.
“Q. When he rang the bell, how many feet had you on the walking-board ?
“A. I had two on — not right on; I was getting on.
“Q. When he rang the bell the car started, you say?
“A. Yes.
“Q. And that jerked you off?
“A. Yes.
“Q. Did both feet go off or only one?
“A. The right foot went off ahead of the left foot.
“Q. The right foot first and the left one afterwards, did you say that ?
“A. Yes.
“ Q. And which foot went under the car ?
“Q. Did you leave go of the ear, or were you holding fast?
“A. I was holding; * * * when I went over to Twenty-second street some more people were standing there waiting to get on, and the car was stopped, and the conductor seen me and told me to get on, and I went to get on ; Jimmy Moody got on ahead of me, and I was not right on when he rang the bell.
“Q. Were you getting on as quick as you could, or did you loiter?
“A. I was taking my time getting on.
“Q. Were you going right along, or did you stop?
“A. I just went to go in the car, and before I got in the car the conductor rang the bell.
“ Q. You said the conductor told you to get on; do you remember what he said ?
“A. He waved his finger at me to get on.”
The judge adverted to the alleged gesture of the conductor, which he considered only as ap invitation to get on the car at the proper place, but he failed to notice that the conductor saw what did in fact follow the gesture. Doubtless he did not so understand the testimony, but I gather from it that the conductor saw the whole situation, or at least that there was evidence to go to the jury that he saw it.
The question of contributory negligence, too, I think, was for the jury. I cannot say, as matter of law, that the attempt to enter an electric street car at a place where it may be seen, because of barrier or other conditions, that entrance is not invited, must necessarily be negligent even though the car is held for passengers and the attempt to enter is under the conductor’s eye. It is not a reasonable anticipation that under such conditions the car will suddenly be started by the conductor’s order. In this particular case it should be stated that although the questions asked on the part of the defence showed an insistence that the foot-board was on edge, no witness would so testify, and both Kelly and his companion said
The rules to show cause will be made absolute.