Miller v. Public Service Corp.

The opinion of the court was delivered by

Bergest, J.

The first point urged in the support of this appeal is, that there was sufficient proof of negligence on the part of the defendant’s servant to require its submission to the jury. The only basis upon which defendant’s negligence can be rested in this ease is, that the motorman was charged with knowledge that the position of the plaintiff was within the range of the swing of the rear of the car, and therefore he should have stopped the car, or warned plaintiff as he passed that she was liable to be struck by the rear of the car if she remained where she was.

This implies that every motorman when passing a person standing in the street must determine the question whether such person is in danger of being struck by the rear part of the car while passing around a curve, although he is far enough away to allow the front of it to pass. We do not conceive that any such legal duty is imposed upon the motorman.

Cases may arise where the circumstances justify a presumption of negligent operation of a car where the contractuai relation continues, as in Walgar v. Jersey City, &c., Ry. Co., 71 N. J. L. 356, where a passenger was being transferred from one car to another in order to continué his journey, hut such, cases are entirely different from this, where no contractual relation existed. Nor are the cases cited by appellant where the defendant had knowledge, or was chargeable therewith, that if the car proceeded it would run down a person on, or near, the track, or about to cross it, applicable. The reasonable presumption is, that a person standing in the street and indicating a desire to board such a car, will keep beyond the range of the car until it stops, and to charge a motorman with the duty of deciding in every case whether an applicant for passage is within the zone of danger from the swing of the rear of the car when going around a curve, would charge him with an obligation the law does not impose.

The rule approved by the weight of authority is, that in view of the well-known fact that in rounding a curve, the rear end of a street car will swing beyond the track, and overlap the street to a greater extent than the front, the motorman may rightfully assume that an adult person standing near the track, who is apparently able to see, hear and move, and having notice of the approach of a street car, and of the existence of the curve, will draw hack far enough to avoid being struck by the rear of the car as it swings around the curve in the usual and expected manner, and, therefore, no legal duty is imposed upon the motorman to warn such a person against the possible danger of a collision with the rear, because of tbe swing, if be remains in the same position. Jelly v. North Jersey Railway Co., 16 N. J. L. 191; Widmer v. West End Street Railway Co. (Mass.), 32 N. E. Rep. 899; Garvey v. Rhode Island Co., 26 R. I. 80; 58 Atl. Rep. 456; Hayden v. Fair Haven and W. Railroad Co., 56 Atl. Rep. 613; 76 Conn. 355.

In the ease under consideration, the plaintiff approached the track at a point where she knew there was a curve, and she testified that she supposed the rear of a car would swing out over the street as it came around the c-uyve, and yet she did not move. The distance she was standing from the front of the car as it passed around the curve was not shown, and we think the motorman had a right to presume either that she was beyond the swing, or that if not, she would move out of its range. We must take the ease as it is presented to ns, and without proof of the exact position taken by the plaintiff with reference to the approaching ear, beyond the fact that the front passed her without injury, we are asked to say that the motorman must assume, under such circumstances, that she would not act as a reasonable prudent person, and withdraw front a danger of which site was aware, or which she supposed did not exist because of the distance she was front the car, but about Which it subsequently appeared she was mistaken.

To accede to this request would impose a duty upon those operating street railways which, in our opinion, has no legal basis.

In order to make a defendant liable for negligent operation of its car, the plaintiff must prove facts from which it may be legally inferred, and as there is no basis for such inference front the facts in this case, there was nothing to submit to the jury and the court properly directed a judgment of nonsuit, and it will be affirmed.

For affirmance — The Chancellor, Ci-iier Justice, Swayze, Trenchabd, Parker, Bergen, Minturn, Bogert, Vredenbubgi-i, Willums, JJ. 10.

For reversal — Garrison, Kausch, Black, Heppiiniieimkr, JJ. 4.