Consolidated Traction Co. v. Behr

The opinion of the court was delivered by Garrison, J. The question of contributory negligence was submitted to the jury by the trial court, in these words: “ The only question is, does the evidence satisfy you that the plaintiff was herself negligent? The evidence is that the [479] plaintiff, shortly after leaving her house, made use of a bed, to use that term, which had been provided for her on top of this wagon, and there remained sleeping until the happening of the accident. Any act aside from that showing negligence on the part of the plaintiff, I cannot recall. Was that a negligent act? The father had charge of the horse, was walking, driving the animal. Is there any evidence of negligence in that fact? If there is, if you find that the fact that the plaintiff went to sleep upon a wagon being driven along the public highway, with her father walking on the ground, having charge of the animals, and her brother and another man being immediately in advance, if the evidence satisfies you that that was negligence on the part of the plaintiff, then undoubtedly it was an act contributing to the happening of this injury, and the plaintiff would not be entitled to your verdict. But unless you are so satisfied under all the circumstances of the case, there would be nothing in that to disqualify the plaintiff from recovery.” No exception to the charge was taken, nor was the trial court at any time asked to make any ruling with respect to the negligence of the plaintiff in going to sleep.. In fact, the case is barren of any mention whatsoever of the circumstance that the plaintiff was asleep excepting as it appears in the language of the charge above given, where it was permitted to go unchallenged to the jury. It is now argued that the plaintiff should have been non-suited because she was asleep, or that a verdict upon that ground should have been directed for the defendant. That a plaintiff in error will not be permitted to raise in this court a point not taken at the trial is too well established to warrant an extended citation of authorities. Meader v. Cornell, 29 Vroom 375; Potts v. Evans, Id. 384. The course pursued at the trial makes it quite clear that early in the case the defence was placed upon the ground of the imputability to the plaintiff of the negligence of her father, and later was rested upon the contention that the plaintiff was, in legal contemplation, the driver of the vehicle. [480] Thus, the motion to nonsuit, apart from the claim that the defendant was not negligent, was put solely upon the ground that the father’s conduct contributed to the collision, while at the close of the testimony no ground at all was assigned for the direction of a verdict. Twenty-five requests to charge were handed to the court,, but in none of them is the remotest reference made to the fact that the plaintiff was asleep. In fine, the matter was never alluded to during the entire trial. The court was asked to charge that if the plaintiff was negligent and drove out from behind a wagon directly upon the track of an approaching car, and so close to it as to make a collision imminent, she could not recover ; also, that if she drove upon the tracks of the defendant and attempted to drive across the tracks directly in front of an approaching car, she was guilty of contributory negligence; also, that if the plaintiff, in driving upon the track where the collision occurred, did not first glance in the direction from which she might expect a car, she cannot recover; also, that she must affirmatively establish that she was guilty of no negligence that contributed to the injury. These requests were all properly denied, first, because they rested upon the false assumption that the plaintiff was the driver, and second, because the trial judge was not required to charge what the law would be if certain isolated facts constituted the entire case. Fath v. Thompson, 29 Vroom 180. Upon the points at issue the charge was direct and not excepted to by the defendant. A further request to charge was in these words: “ The court is further requested to charge that the plaintiff must take the same precaution in crossing the tracks of the street railway, before driving upon the track, as is required of pedestrians.” The doctrine embodied in this request is clearly erroneous, for a vehicle that is crossing the tracks of a street railway, in front of an approaching car, has a temporary right of way that alters, for the time being, the relative duties of the two [481] users of the highway and gives rise to rules of conduct differing from those that exist between a pedestrian and an approaching car. The remaining request is as follows: “ The court is further requested to charge that if the plaintiff failed to look or listen before attempting to cross or drive upon the track of the street railway, and if she had taken that precaution she would have prevented the collision, the plaintiff is guilty of contributory negligence and cannot recover.” Inasmuch as the plaintiff neither attempted to cross or to drive upon the track at all, since she was not the driver and was not even seated beside him, this request does not appear to have any pertinence to the case. If pertinent, the instruction was clearly erroneous, for the reason that one who is being carried as the plaintiff was is not charged, irrespective of circumstances, with the absolute duty to look and listen. Whether this plaintiff was negligent in not looking and listening, under the circumstances of the case, was left to the jury- Finding no error in the conduct of the trial judge, the judgment of the Circuit Court is affirmed. For 'affirmance—Dixon, Garrison, Magie, Barkalow, Bogert, Dayton, Hendrickson. 7. For reversal—The Chancellor, Gummere, ■ Van Syckel, Nixon. 4.