Schwanewede v. North Hudson County Railway Co.

The opinion of the court was delivered by Fort, J. The judgment in this ease should be reversed. The plaintiff and Peter Madison were the only witnesses to [450] the accident called on behalf of the plaintiff. Plaintiff said he saw the car coming when he was twenty feet from the track, and that it was then going at full speed — as far as it could. He was then asked: “Q. After you saw the car, what did you do ? “A. I kept on driving.” On cross-examination, he said: “Q-. How, when you saw this ear was going, you knew it was going very rapidly; you thought you could get over and you took the chance ? “A. Yes. “Q. You could have stopped after you left the beef company, but you took the chance ? “A. Yes, sir.” Madison testified: "I never saw a car going so fast in my life,” and that he saw plaintiff "about twenty-five feet away from the track; he was traveling on a trot toward Jefferson street.” Again he said : “Q. Was Schwanewede taking a chance? “A. I thought he was going to wait there for sure. “Q. Did he not try to beat the car across ? "A. Yes. "Q. You say the accident could not be helped? "A. That is what I say.” A plaintiff cannot take chances of this kind and hold himself free from contributory negligence. There is a difference between an unforeseen peril and being overtaken by one recklessly incurred. West Jersey Railroad Co. v. Ewan, 26 Vroom 574, 576. If it appears that the trolley car motorman is not going to respect your rights to cross the street first, you must wait, or you are guilty of contributory negligence if hurt. Earle v. Consolidated Traction Co., 35 Vroom 573. There was a motion to nonsuit when the plaintiff rested, and also a motion to direct a verdict for the defendant when the evidence was all in. The defendant was entitled to each motion at the time it was made. The judgment of the District Court is reversed.