62 N.J.L. 404 | N.J. | 1898
The opinion of the court was delivered by
This writ brings up for review a judgment of nonsuit, which was ordered at the close of the plaintiffs’ case by the judge holding the Hudson Circuit Court to whom the cause had been regularly referred for trial.
The suit was brought to recover damages by Marie Mahnken and her husband, the plaintiffs below, for alleged injuries suffered by the wife, who will be herein described as the plaintiff, from stepping through an opening in a drawbridge over the South Shrewsbury river, in the public highway leading from Seabright to Little Silver, in the county of Monmouth, known as the Eumson road, and located at or near the borough of Seabright. The action is based upon the authority of the statute found in Gen. Stat., p. 307, which holds the board of chosen freeholders of a county responsible for damages to a person for injuries received because of its wrongful neglect to erect, rebuild and repair a bridge under its charge, as required by law. The plaintiff was returning upon her bicycle from a short visit to Seabright; she was alone at the time, but was expecting a couple of friends, with whom she had been riding in company, to overtake her; upon reaching the bridge,'she found that the draw was off} and that there was a carriage waiting in front of her, and one coming behind her; she was then upou the bridge, and concluded to alight from her wheel, which she did by wheeling
The grounds upon which the nonsuit was ordered, as stated by the trial judge, were, that the danger from the opening was an obvious one, which the plaintiff must have seen, if she had been in the exercise of ordinary care, when she alighted from her wheel; that she had a right, being in the use of a vehicle, to be on the driveway of the bridge, but that there was a question whether she had a right to alight at the timber guard, where the opening had been located as a part of the construction of the bridge, and so located that people could not get into it without getting where they had no right to be; that the place was a dangerous one, and the danger was obvious.
This view has been presented by counsel in the argument
The first proposition submitted is that there is shown to have been a want of ordinary care on the part of the plaintiff in dismounting from her wheel.
One of the specifications under this head is that her manner of dismounting, as described by herself, is an unnatural and awkward one, and that a fall would be the natural consequence of such an attempt; but it must be noticed that there is no evidence on this point except that of the plaintiff, and she says she was familiar with the wheel and accustomed in its use, to mount and dismount without assistance, and that, this being a lady’s wheel, she dismounted in a proper manner on this occasion.
Upon cross-examination some doubt may have been raised as to this by her admission that while she put the right foot over the wheel and placed it on the timber guard, she retained her seat in the saddle. But upon her re-examination she explained that she did not mean that she sat still on her wheel while dismounting, and that the rider cannot sit still in so doing but must rise in the seat and stand on the pedal, and that there was nothing out of the ordinary in her manner of dismounting on this occasion.
Counsel admits that this manner of dismounting was all right if done in a level place, but insists that it is not the best way to alight when approaching an elevated object. Now in the absence of other evidence, can the court say that there is room for but one opinion or conclusion from the facts as to her want of due care in alighting, and that it is clearly manifest that her carelessness directly contributed to this injury? I think, taking the evidence most favorable to defendant’s contention, the question is a debatable one, and if so it must-be submitted to a jury. Pennsylvania Railroad Co. v. Righter, 13 Vroom 180; Central Railroad Co. v. Moore, 4 Zab. 824; Durant v. Palmer, 5 Dutcher 544; Houston v. Traphagen, 18 Vroom 23; Comben v. Belleville Stone Co., 30 Id. 226 ; Whart. Negl. (2d ed.) 420; Pennsylvania Railroad Co. v. Matthews, 7 Vroom 531; Traction Co. v. Scott, 29 Id. 682.
A .public bridge being a highway, the principles of the common law of highways are applied to such bridges. 9 Am. & Eng. Encycl. L. 365. Such a bridge is the one now under consideration.
In Proprietors, &c., v. Hoboken, 2 Beas. 518, such a structure is described thus, “ a bridge, by the concurrent testimony of all past time, in every possible shape and form, is but the ordinary road carried across the river,” &c. So that we may justly assume that the plaintiff had a right to be on any part of the traveled wagon ways of the bridge. She also had a. right to presume that they were clear of unguarded obstructions and dangers. Durant v. Palmer, supra; Houston v. Traphagen, 18 Vroom 23; Suburban Electric Co. v. Nugent, 29 Id. 658 ; 1 Shear. & Red. Negl. 353.
It is, of course, the duty of a person traveling on a highway to keep such a lookout for patent defects as is usual with prudent drivers, but what is ordinary care under the circumstances is usually a question for the jury.
It cannot be said that the plaintiff actually saw the opening in question or even knew of the existence of any of these openings, for her uncontradieted evidence is that she did not. And on the question of whether she is to be held liable for imputed knowledge on the subject, on the ground that she must have seen them if she had looked, the further principle of law is pertinent that it is not negligence per se for a traveler on foot or upon a vehicle to lift his eyes from the path
In Durant v. Palmer, supra, which was a suit to recover damages for injuries sustained by falling into an unguarded excavation which was within the line of the street and adjacent to a building of the defendant, in the night-time, the plaintiff had deviated from the middle of the pavement to look at some goods in a store window, and failing to look down and observe,the excavation, he stepped into it. It was argued that thereby the plaintiff w7as culpably negligent and could not recover, but in the opinion of this court it is held that “ the deviation from the middle of the sidewalk is not necessarily an act of carelessness, nor is the looking in at a store window conclusively an act of trespass or negligence. They may be so or not, according to the peculiar circumstances of the case. They are matters of fact to be submitted to the jury under the direction of the court, but they do not constitute sufficient ground of nonsuit.” This doctrine is . sanctioned in Houston v. Traphagen, supra, and in Sheets v. Connolly Railway Co., 25 Vroom 518.
There are several circumstances to be considered in the present case in reaching a conclusion upon the question of whether the plaintiff was negligent in failing to see the place of danger.
There was the presumption of law that the bridge was in a safe condition. There was a carriage in front of the plaintiff and one coming behind her, as she was about to dismount, which might justly require a share of her attention. Upon the principle just referred to, it seems clear that these are matters to be submitted to the jury, and to be considered by them, upon a question of contributory negligence.
The only other question suggested by counsel is that no negligence is shown on the part of the defendant; that the openings were a part of the original structure left for a useful purpose, too close to the timber guard to be dangerous to travelers by carriage or bicycle, and that an unmounted rider of the latter would not be reasonably expected to walk or
I think it is clear that these questions are within the rule already stated and come within the proper domain of the jury.
The result is that the judgment of nonsuit should be reversed and a writ of venire de novo be awarded.
For affirmance — None.
For reversal — The Chancellor, Chief Justice, Collins, Depub, Dixon, Garrison, Lippincott, Ludlow, Van Syckel, Adams, Bogert, Hendrickson, Nixon, Vredenburgh. 14.