82 N.J.L. 712 | N.J. | 1912
The opinion of the court was delivered by
-The accident upon which this suit was based occurred at about five-thirty in the afternoon of January 7th, 1910, in the city of Newark, at the corner of Montclair and Mt. Prospect avenues. The plaintiff, a child of thirteen years, was riding down Montclair avenue on a bob-sled with a number of other persons, and the injury she received' was occasioned by the bob-sled coming into collision with a trolley car of the defendant company.
It appeared from the evidence that Montclair avenue was a street used by children and others for coasting, and that on the afternoon in question many had taken advantage of the sport. Montclair avenue runs east and west and is intersected by Mt. Prospect avenue, which runs north and south, and upon the latter the defendant runs and operates trolley cars. That the trolley company was aware of the use of Montclair'avenue for coasting appears, and it caused all of its cars at that time which were going north to stop at the first or southerly crossing, and all the cars going south to stop at the first or northerly crossing. It appeared that a number of boys stood at the corner of Monte Lair and Mt. Prospect avenues from time to time and signaled to the sleds and also to the cars. The plaintiff had by invitation made two trips down on the bob-sled in question, and the accident occurred on the Ihird trip. The sled was equipped with a bell, which was kept ringing all the way down the hill. The sled was about, twelve feet in length and could be steered.
On the trip when the accident occurred a young man stood at the corner of the avenues in question and signaled to the sleds to ccme down the hill; soon after he did this he saw
At the close of the plaintiff’s case the defendant moved for a nonsuit, which was granted by the court and judgment entered thereon.
In granting the motion for a nonsuit the trial judge said that, “On a motion to nonsuit two questions arise in this case. First, is there evidence tending to show that there was want of due care in the operation of the car which was a cause of the accident? Secondly, does it appear that the plaintiff by her own fault contributed to the injury? In this question the word ‘fault’ is used, not in a popular sense, but in a legal sense. There is evidence to go to the jury on the question whether the car was operated with due care. I pass at once to the other question, which is this: Does it appear from the plaintiff’s own case that her own fault was a proximate, direct and immediate contributing cause of the injury? The declaration alleges that the bob-sled was lawfully crossing Mt. Prospect avenue. ' If this be true, the plaintiff,was not at fault. Is it true? The decision of the motion to nonsuit turns on the answer to this question.” He further went on to say that, an act which seriously interferes with the legitimate use of a public highway and endangers the safety of the travelers upon it, is a public nuisance, and that one who voluntarily and intelligently participates in such act, is in a legal sense a wrong-doer, but he ■added that coasting on a public highway was not always and
The contention on the part, of the defendant was even broader than the ruling of the trial court; it was that the, plaintiff interfered with its rights upon the public streets, and that against the company she was a trespasser, and the duty of the company was such as is due to any trespasser, to wit, merely to refrain from willfully Injuring her.
We think the view taken of the case by the trial court was erroneous. The granting of the nonsuit at the close of the plaintiff’s case could be justified only upon the ground that the act of the plaintiff was a public nuisance, in fact a nuisance per se, the existence or non-existence of which is admittedly a question of law purely. If the act was not a public nuisance, then whether or not the particular thing, act, omission or use of property complained of was in fact a nuisance was to be determined by the jury. 21 Am. & Eng. Encycl. L. 621.
We cannot concede that coasting upon a public street is an illegal act, so as to constitute it a public nuisance. Public highways are intended for pleasure uses as well as business uses, and it is difficult to see why a sled coasting down hill should be said to be a public nuisance any more than a sleigh drawn by horses going down the same highway.
The matter of the coasting or sled riding in a public street has been a subject of decision in several jurisdictions, and we agree with the contention of the plaintiff in error that the most logical opinion upon the subject is that of Justice Cooley in the case of Burford v. Grand Rapids, 53 Mich. 98, where he held that “'coasting does not necessarily interfere with the customary use of the street and might be indulged
Even if it be true, as contended, that the plaintiff was engaged in a sport which, when indulgéd in in the public streets, might be’ considered a nuisance, yet we think that if her injury resulted from the negligence of the motorman and not from any negligence on her part, she was entitled to recover. Delaware, Lackawanna and Western Railroad Co. v. Trautwein, 23 Vroom 169.
The question of the negligence of the motorman and the contributory negligence of the plaintiff was clearly for the jury. There was evidence which shows that the motormen of the defendant’s cars were aware that the hill on Montclair avenue was being used by children and others for coasting, and that a young man was usually at the intersection of Montclair and Mt. Prospect avenues to warn trolley cars of the approach of coasters, and that the motorman of this par
'The judgment of nonsuit must be reversed and a new trial granted.'
For affirmance—Tbenohabd, Yooehees, Yredenburgh, JJ. 3. '
For reversal—The Chief Justice, Garrison, Swayze, Parker, Bergen, Kalisch, Bogert, Yroom, Congdon, White, JJ. 10.