137 A. 526 | N.J. | 1927
This is an appeal from a judgment of nonsuit in the Essex Circuit Court. The plaintiff, Edward Henry Sharpe, brought an action against the Public Service Railway Company to recover damages for injuries to himself and to his motorcycle received in a collision with one of the company's electric cars. At the conclusion of the plaintiff's case the trial judge, deeming the plaintiff clearly guilty of contributory negligence, granted the nonsuit.
It is settled that two questions are always involved where negligence or contributory negligence is alleged. The first is whether the conduct of the person so charged constituted negligence. The second is whether that negligence contributed to the injuries sustained. Under ordinary conditions these questions are for the determination of the jury and not for the court.Smith v. Public Service Corp.,
If, however, upon the evidence adduced it shall clearly appear that such negligence does exist, and that it has a causal relation to an injurious accident, the question becomes one of law for the court. New Jersey Express Co. v. Nichols,
The view taken in the court below that the case as proved by the plaintiff invoked the application of the latter rule was, we think, upon a review of the evidence, justified. The facts as established by the plaintiff and his witness, Smith, developed the following situation: The railway company operates a double line of trackage on First street, in the city of Newark. First street runs north and south, and the easterly rail of the northbound track is eleven and one-half feet from the easterly curb line. The accident occurred between twelve and one o'clock in the day on the 25th of April, 1922. The plaintiff was riding a motorcycle, going west on the northerly side of New street (which crosses First street at right angles) at the rate of seven to ten miles per hour, and, according to his own testimony, could stop his motorcycle within six feet. As he approached the intersection "he kind of looked to the right" and sounded a little exhaust whistle that he had rigged up temporarily on his motorcycle. Without looking to the south, in the direction from which the trolley car was approaching, he proceeded to cross First street without stopping or reducing his speed. As he neared the northbound east track his motorcycle ran into the side of the passing trolley car and close to its rear end. His motorcycle was damaged and he himself injured. It further appeared that the trolley car was in plain sight, not only of the plaintiff when he reached the curb line of First street, but also of the witness who was fifty to seventy-five feet back of him.
In these circumstances we think, as did the trial judge, that not only is the inference of negligence on the part of the plaintiff irresistibly manifest, but it is equally manifest that but for that negligence the accident could not have occurred. The rights of the parties on the highway were equal, and the fundamental duty of using reasonable care in approaching the intersection rested upon both the plaintiff and the defendant. *586 There was evidence in abundance of the negligence of the defendant's motorman, in that he was operating at high speed and without warning. On the other hand, there was, as we have said, also conclusive evidence of the failure of the plaintiff to use that ordinary degree of care which, if it had been exercised, would have saved him from the untoward consequences which resulted.
In the early days the highways were used by pedestrians, equestrians and drivers of horse-drawn vehicles. The high-powered motor in automobile and trolley car had not yet appeared. The cases involving the operation of the horse-drawn vehicle of necessity dealt with a factor which is not present in the automobile or a motorcycle, namely, the independent volition of the horse, and to some extent this independent volition and its want of complete controllability have entered into the reasoning upon which an absolute duty to look has not been always imposed, on the theory that the driver's attention must necessarily be in large measure devoted to the control of his animal. The advent of automotive power measurably eliminates this element, and want of complete control of the horse in contrast to the more amenable motor is recognized in our traffic laws, in that while an automobile is permitted to run at the rate of thirty miles per hour on the open highway, the horse is limited to twelve miles per hour along a public road. The rule respecting pedestrians has been uniform, that they must use their powers of observation before crossing trolley tracks. Newark Passenger Railway Co., v. Block,
Counsel for the appellant has cited numerous cases such asTraction Co. v. Scott,
While, therefore, it is not always negligence per se for the operator of a motor vehicle to fail to look when approaching a street railway crossing, yet, under exceptional circumstances, it may so clearly appear that the failure to look demonstrates negligence and a casual relation between such negligence and the ensuing collision may be so patent as to present an entire question of law for the court, and upon which it may enter a nonsuit. Such a case we think is here presented. The trolley car with which the plaintiff collided had nearly crossed the intersecting New street and the motorcycle *588 struck the trolley near the rear end. The slightest observance at a proper time of the conditions before him would have indicated the dangerous situation presented, and it was the want of this observance, together with heedless proceeding in the face of danger, which in part at least brought to the plaintiff his misfortune.
The judgment of nonsuit will be affirmed.
Mr. Justice Kalisch dissents. *589