Murray v. Paterson Railway Co.

[304] The opinion of the court was delivered by Mague, Chief Justice. The first four questions submitted for an advisory opinion may be considered together. It appears from the evidence contained in the stated case, that when his injury was received plaintiff was crossing a public street diagonally and not at a street crossing; that a trolley car of defendant was traveling on its track upon that street, towards plaintiff; that the car was crowded with passengers and that no power was being applied, but the car was running upon a down grade, but not a steep grade. There was also evidence from which it could be inferred that the car was running at a great speed, and that when plaintiff attempted to cross the street, within the view of the motorman, the latter did not attempt to check the speed of the car. The evidence further showed that plaintiff, while running across, fell upon the track of the approaching car. There was evidence from which it could be found that the motorman then, for the first time, applied the brake and endeavored to arrest the motion of the car. Before plaintiff could arise or a bystander, who ran to his assistance, could drag him from the track, the car ran over one of his legs. The case shows that it was not contended at the trial (and it has not been contended here) that plaintiff was capable of contributing to his injury by his own negligence. The sole question, then, is whether there was evidence to go to the jury in respect to the negligence of the motorman, the agent of defendant, in the management of the car. Our conclusion is that there was such evidence and that it was properly submitted to the jury. They were entitled to and were permitted to consider the momentum given to a car on a down grade by its heavy load, and to determine whether or not it was running at a very high rate of speed. They were then entitled to consider whether or not, taking into account the momentum and speed, it was not the duty of the motorman, as soon as he saw plaintiff commence to cross the [305] street, to use his brake and arrest the motion of the car, and not to postpone that act until he saw the plaintiff fall on the track. But it is strenuously urged that this cast upon the motorman a duty greater than the law imposes. It is contended that, as the evidence shows, in the opinion of the bystanders, plaintiff, if he had not fallen, would have passed the track, going in the direction and at the speed he was, without injury, and that no duty devolved on the motorman to take into consideration the chance that a child of that age would fall upon the track. Whether a motorman is charged with that duty when he is running his ear at a rate of speed which is reasonable, cannot be considered, for the trial judge tried the case, as will be seen, upon the ground that no such duty was imposed on the motorman. He left to the jury whether, if the car had been run at a reasonable rate of speed or kept under a control appropriate to the momentum and grade, it could not have been stopped, after the child fell, without running over him. So that the case was put upon the unreasonable rate of speed and the duty which, under the circumstances, grew out of that fact, viz., to maintain a control by the brake which would stop the car within a reasonable distance. In this we perceive no error, and the first four questions must be answered in the negative. The fifth question asks consideration of the refusal of the trial judge to charge two requests set out therein. These requests relate to the duty of a motorman in regulating the speed of his car, and the judge was asked to instruct the jury that the motorman was not bound to consider the possibility that a person who was crossing the track in front of his car might fall upon the track, without any reference to the rate of speed at which he was running his car. The judge charged the jury in the very language of the requests, with the added statement that the rate of speed must be otherwise reasonable. So far as the case before us is concerned, I think the re [306] quests were rightly refused. If a motorman is running his car in a public highway at an unreasonable rate of speed, and he sees a child of tender years attempting to cross, the street in front of his car, I think he is bound to exercise such care for its safety under the • circumstances as reasonable prudence would require. As children of that age frequently fall, he is bound to consider that circumstance, and, if prudence requires, to abate the unreasonable speed. The fifth question must, therefore, be answered in the negative. The sixth and seventh questions are disposed of by what has been said, and must be also answered in the negative. The eighth and ninth questions relate to matters of fact, and present no question of law at all. In my judgment they are not questions proper to be certified under the provisions contained in sections 247, 248 and 249 of the Practice act. Those provisions came under consideration in the Court of Errors in the case of a judgment brought there by writ of error from a Circuit Court, which judgment had been entered after a rule to show cause why a new trial should not be granted, had been allowed and certified to this court and returned with the advice that the rule should be discharged. Errors having been assigned in the Court of Errors upon the advisory opinion, a motion was made to strike them from the record. The report of the case indicates that the motion prevailed by the unanimous vote of the court. But two opinions were delivered, exhibiting divergent views. Chief Justice Beasley expressed the view that error could not be assigned upon an advisory opinion of this court returned to the Circuit and advising the making absolute or discharging a rule to show'cause. Mr. Justice Dixon declared that error could be assigned upon such an opinion so far as it expressed legal propositions, but not upon its determination of questions relating to the preponderance of evidence or the amount of damages. Delaware, Lackawanna and Western Railroad Co. v. Nevelle, 22 Vroom 332. [307] The view expressed by the Chief Justice may be assumed to have expressed the opinion of the majority, for that is the ■opinion stated in the syllabus, which was doubtless prepared by him. Upon that assumption, I think that if it were an open ■question it might be strongly argued that the legislation now contained in the three sections above referred to was not intended to permit a rule to show cause why a new trial should not be granted to be certified. For there are clear indications in the statute that what was permitted to be certified was what could be reviewed by writ of error. But, as was pointed out by Mr. Justice Dixon, an exposition of this legislation by contemporaneous practice precluded ■the contention that a rule to show cause was not within the ■intention of the acts. The contemporaneous cases referred to by Mr. Justice Dixon in the opinion mentioned, show, on examination, that the questions certified embraced purely questions of law. Nor am I able to discover until comparatively modern days any certified rule involving questions of fact as to weight of evidence, amount of damages, &c. Latterly, the question was directly presented to this court whether a Circuit Court could certify a rule to show cause so as to require us to settle facts in dispute. The determination was contrary to the existence of such power in the Circuit Court. Destefano v. Calandriello, 28 Vroom 483. We conceive that this case governs that now before us as to the questions eight and nine. A certificate answering the other questions will be made. This will leave the Circuit Court free to deal with those questions if it desires.