81 N.J.L. 562 | N.J. | 1911
The opinion of the court was delivered hy
This is an action that was brought to recover damages arising from the death of John IV. Martin, alleged to have been caused hy the negligence of the defendant.
Martin was in the employ of the defendant as a conductor oí a trolley car running between Limns Farms and El Mora, in the city of Elizabeth, on which route three ears operate. On the evening of September 17th, 1903, Martin’s ear had left Lyons Farms and was proceeding south on Broad street, Elizabeth, on its way to El Mora.
It was a dark evening and there had been on that day a severe storm, with high winds. The violence of the storm had subsided at the time of the accident by which Martin came to Ms death. Of the fatal occurrence itself there was no witness. The nearest approach to direct testimony was that of a Mrs. Hutchinson, an acquaintance of Martin, whose house stood some twenty feet hack from the street and just opposite the place where Martin’s death occurred. Mrs. Hutchinson’s testimony was that while in the hack part of her home, at about seven o’clock in the evening, her attention was arrested by a dash of light in the street, and that upon going to the front of the house she saw that a southbound trolley had just passed. This car went on towards Elizabeth. Witness then observed a wire, partly in the air, and “quite a few feet of it on the ground,” where it was, as she expressed it, “alight.” While she thus stood a car coming from Elizabeth passed her. house on the northbound track, and npon its return towards Elizabeth she tried to stop it, at first by whistling and after-wards by calling out. She was not successful in stopping the ear, which, in passing the place where the wires were down, emitted a great light and afterwards stopped, and some one
In addition to the warning given to Martin by Mrs. Hutchinson, there was also testimony that the motorman, who had been himself severely shocked, advised Martin against going ■back on foot, suggesting that it would be safer to run the car back.
There was further direct testimony as to the wire that was on the ground emitting sparks, and there was also testimony of another wire or the other end of the same wire, that hung over the southbound track and reached to within four or five feet of the ground. There was considerable testimony as to the number of wires maintained at that point by the defendant and others and as to their nature and location.
Upon this testimony, amplified only as to details, the trial court, at the conclusion of the whole case, directed a verdict against the plaintiff without regard to the question of the defendant’s negligence, solely upon the ground that the deceased was guilty of contributory negligence and had voluntarily assumed the danger of an obvious risk that was not within his employment as a servant of the trolley company.
If this ruling is to be justified, it must be upon the assumption that the only inference of which the testimony is susceptible was that Martin was killed by his voluntarily or incautiously coming in contact with the wire that. Mrs. Hutchinson .saw emitting sparks, and of which she warned him, and which he said he 'saw. The inference, however, that was most favorable to. the plaintiff, and which both the trial court and this court must assume,, is that .Martin’s death was caused by •his coming in' contact with the wire that was emitting no sparks and giving in the darkness no indication of its presence, since it formed no circuit by touching the ground, which it
The situation with which, in the present case, the servant was suddenly confronted, was one in which not only the property and equipment of the master were threatened with injury or destruction, hut by which its traffic was in danger of being seriously interfered with, and the lives of its passengers greatly imperiled. To report to the master the existence of such a condition would seem to lie within the duty of any servant who was in the least degree careful of his master’s interests.
To ascertain to some extent the existing state of affairs, in order that such report might he reasonably useful and tend to the prompt correction of the trouble, is so closely connected with such primary duty that it cannot be said, at least not conclusively and as a matter of law, to be clearly outside of the scope of the duty owed by such servant to his employer. If, for instance, in the present ease, Martin, after ascertaining that the wires were down, had made a report to that effect to
We conclude, therefore, that the direction of a verdict upon the ground on which it was placed by the trial court was erroneous. This conclusion, of course, does not prevent the defendant in error from sustaining such direction upon some other ground, and this it has attempted to do upon the ground that there was no testimony from which a jury should be permitted to find that the death of the plaintiffs decedent was due to the failure of the defendant to exercise reasonable care in respect to its system and equipment. Without rehearsing the testimony bearing upon this contention, it is sufficient to say. that we think that upon the evidence upon this point there was a jury question under the decisions of our courts in the cases of New York and New Jersey Tel. Co. v. Bennett, 33 Vroom 742; Hamilton v. Bordentown Electric, &c., Co., 39 Id. 85; Burns v. Delaware and Atlantic Telegraph and Telephone Co., 41 Id. 745, and cases there cited.
The judgment entered in the Supreme Court on the directed verdict is reversed and a venire de novo awarded.
For affirmance—Hone.
For reversal—The Chancellor, Chibe Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yoorhees, Minturn, Bogert, Vredenburgii, Yroom, Congdon, JJ. 13.