Devine v. Public Service Co-ordinated Transport
Devine v. Public Service Co-ordinated Transport
Opinion of the Court
The plaintiffs, husband and wife, riding in a Pord car driven by the husband, were about to cross a trolley track of the named defendant from west to east, when the car was struck by a trolley car of said defendant going from south to north, and practically demolished. The female plaintiff sustained personal injuries, the severity of which is in dispute; her husband was not injured but joined his claim per quod and also a claim for loss of the Pord car. There was a verdict of $10,000 in favor of the wife and $2,539 for the husband. The reasons argued are refusal to nonsuit, refusal to direct verdict for defendant, verdict against weight of evidence, and excessive damages. A fifth reason directed to a passage in the charge is abandoned.
At the time of the accident the plaintiffs were living on a small farm lying on the west side of the main road from Bordentown to Trenton. In the space apparently allotted to the road, but west of the concrete roadway and between it and plaintiffs’ farm and close to the edge of the road, ran the single trolley track of the defendant. At the south of plaintiffs’ farm and between it and the next property to the south, a narrow lane ran at right angles to the road, sloping downward to the trolley track between banks, weeds and thick shrubbery which cut off all view to the south until the road was reached. To the north, over plaintiffs’ property, there was a better view as the plaintiff Patrick had cut down the growth to some extent. The two plaintiffs in their car proceeded eastwardly through the lane and down the incline, stopped with the front wheels about two feet from the track (so runs Patrick’s testimony) and both looked and listened.
As to the plaintiff Patrick Devine, we think there should have been a nonsuit or a direction on the ground of contributory negligence, assuming the negligence of the motorman, of which we shall presently have something to say. It seems plain to us, on the plaintiffs’ own testimony, that knowing of the conditions as to visibility and the obvious danger of “going it blind” ordinary care required Patrick to stop his car and if necessary to see, get out and make sure of his safety. If the running of the engine prevented his hearing, he should have stopped the engine. The' ease seems fully within the ruling of the Court of Errors and Appeals üi Merkle v. New York, &c., Railroad Co., 49 N. J. L. 473, where the rattling of bottles in the wagon prevented hearing a train which could not be seen because of obstructions to the view.
As to the wife, it is not clear that she was other than a passenger in the Ford car, although she helped her husband on the farm, and although she also, according to her testimony, “was watching for traffic and trolleys both ways” and “did not see nor hear anything.” It is not claimed, however, that her husband’s negligence is imputable to her and
We consider, however, that the verdict of $10,000 was excessive. The medical evidence was, as often happens, contradictory to some extent, but no bones were broken, and we feel that the jury made a clearly extravagant appraisal of her injuries. If she will accept a reduction to $5,000 the verdict in her favor may stand, otherwise it will be set aside. The rule as to the husband will be made absolute.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.