97 N.J.L. 297 | N.J. | 1922
The opinion of the court was delivered by
This is an appeal from a judgment of nonsuit rendered in an' action at law instituted in the Supreme Court and tried at the Gloucester Circuit. Michael Staub, in his own right and to the use of the Liverpool and London and Globe Insurance Company, sued the Public Ser
The trial court based its nonsuit upon the grounds that the crossing was not a public road and the defendant, therefore, not guilty of negligence in failing to give warning of the approach of its car; that in the use of this crossing the plaintiff was a trespasser; that the defendant owed no duty to a trespasser except to refrain from any wanton or willful injury, of which there was no evidence.
In directing the judgment of nonsuit on these grounds, we think the trial court ruled correctly. There is no evidence that the crossing where the accident occurred was a public highway. The evidence is to the contrary. It was located
The appellant further contends that the case should have been submitted to the jury, because the evidence discloses that the defendant’s motorman was guilty of wanton and willful injury to the plaintiff’s property. The appellant argues that the road operation required the use of many
To establish a willful or wanton injury it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result. 29 Cyc. 509. There is no evidence in this case that the motorman of the car could see the truck upon the track and after such discovery with ample opportunity to stop his car before a collision would occur, deliberately failed to do so. There was therefore no evidence of willful or wanton injury which entitled the plaintiff to a submission of this question to the jury.
The judgment of nonsuit is affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, White, Heppenheimer, Williams, Gardner, Ackerson, Yan Buskirk, JJ. 16.
For reversal — Hone.