Shuler v. North Jersey Street Railway Co.

The opinion of the court was delivered by Swayze, J. This case was tried before the decision of this court in Eagen v. Jersey City, Hoboken and Paterson Street Railway Co., 45 Vroom 699, and the trial judge pursued the same course that had been pursued at the trial of that case. The only facts which distinguish the present case are that-the speed of the car which struck the plaintiff was excessive, and that he had barely reached the nearest rail, instead of the middle of the track. The excessive speed of the car is persuasive of negligence on the part of the defendant, but we fail to see how it relieves the plaintiff of the charge of contributory negligence for not looking, or for not waiting until the obstruction to his vision by the car from which he had alighted was removed. The speed of the car in no way prevented him from seeing its approach, and the faster it was going the less excuse he had for advancing in a direction across its track. If it were going so fast that the motorman obviously did not intend to respect his right, he would have been guilty of negligence in attempting to cross. Earle v. Consolidated Traction Co., 35 Vroom 573. The fact that he had only reached the rail, and was struck merely by the corner of the fender, bears against the plaintiff. In the Eagen case the jury might have found that the plaintiff had reached the middle of the track. If so, there was at least a chance for the inference that the motorman might have seen him in time to avoid the accident if he had the car under proper control. In the present case the position of the plaintiff was such that the motorman could not have seen him until the front platform of the approaching car was abreast of the rear platform of the car from which the plaintiff had just alighted. We cannot distinguish the case in any feature helpful to the plaintiff from the Eagen case, and think there should have been a nonsuit. •The judgment must therefore be reversed. [826] For affirmance — The Chancellor, Bogert, J. 2. For reversal — The Ci-iiee Justice, Garrison, Swayze, Eeed, Trenohard, Bergen, Yroom, Green, Dill, J.J. 9.