Orange & Newark Horse Railroad v. Ward ( 1885 )

Knapp, J.

This suit was brought by the defendant in error to recover compensation from the plaintiff’ in error, a horse railroad company, for injuries which the defendant received in a collision with a car of the company, which injury was charged to the culpable negligence of the plaintiff’s servants in managing the car. On the trial, at the close of the case on the part of the plaintiff below, the defendant below asked that plaintiff be non-suited, on the ground that the testimony disclosed contributory negligence on the part of the plaintiff in the management of the vehicle, which he was driving. The court denied the motion; and upon the refusal to non-suit, error is assigned. It is also alleged for error that there was misdirection in the judge’s charge.

The second ground was not relied on in the argument, and it is sufficient to say as to that, that the law was correctly stated to the jury by the judge.

The only question, then, for our consideration is, whether the judge, on the evidence as it stood when the plaintiff rested his case, should have granted the non-suit for contributory negligence of the plaintiff, established by his own proofs.

It is unquestionably the law that if it appear by plaintiff’s evidence that his own negligence caused the injury of which he complains, or contributed to it in such way that but for it the plaintiff would not have received harm from the defendant’s negligence, the court should non-suit, and error may be assigned upon its refusal. New Jersey Express Company v. Nichols, 4 Vroom 434; Moore v. Central R. R. Co., 4 Zab. 824; Telfer v. N. R. R. Co., 1 Vroom 188 ; Drake v. Mount, 4 Vroom 441; Van Horn v. C. R. R., 9 Vroom 133.

When the evidence leaves that fact in uncertainty, it is the duty of the judge to submit the evidence, under proper instructions, to the jury for their decision.

I think the case of the plaintiff, on the point of contribution, presented such a state of uncertainty as rendered it necessary for the judge to submit the question as one of fact to be determined, by the jury. This he did, with clear and precise instructions on the law. ■

The plaintiff gave evidence to prove that at the time when he received his injury he was driving in his wagon along one of the streets in Newark, and was just before, and at the time of the collision, using one of the tracks of the company’s horse railroad. He was traveling at an ordinary gait. No car was in front of him on the track along which he was passing; but as he neared a spur of this road, leading to one of the car stations of the company, a car which had been standing there came out suddenly from the station on the main track and faced him. The point was whether in this situation the best mode of avoiding collision was to attempt to turn off the track or to urge his horse on and thereby pass the car before it barred his way. Both vehicles were in motion towards each other when the plaintiff saw the car. The plaintiff decided to urge on his horse as the safer means of escape, and failed ; a foot more gained in distance would have saved him.

The contributory negligence charged is that he drove on instead of turning from the track.

Now, whether the safer and more prudent course for the plaintiff to pursue to avoid collision was to attempt getting off the track, or to quicken his speed and pass before the car reached him, were questions of fact to be settled upon the evidence and by the jury. I think it quite obvious that the judge could not have determined, legally, that one course or the other was demanded of the plaintiff in the exercise of proper care; or that driving on under existing exigencies was legal negligence.

The plaintiff was rightfully upon the track using it in the manner that he did, as a part of the public street. Coach Company v. C. H. R. R. Co., 6 Stew. Eq. 267.

Before he was obliged to leave it in submission to the superior right of use vested in the company, he was entitled to ■some notice or timely signal that the company then required the track, for passing its car. The notification came in the presence of the car itself coming suddenly upon him from a side track, the view of which was somewhat obstructed at the time. That notice coming so late put him in a dangerous and perplexing position. Whether, then, he acted with reasonable judgment or negligently, was properly and necessarily submitted to the jury.

It is alleged for error that the verdict was against the charge of the court, and against the weight of evidence. These matters belong to the trial court, and cannot be considered here in a review of this record.

There is no error in the judgment, and it should be ■affirmed.