Aquino v. Morris County Traction Co.

106 A. 802, 93 N.J.L. 233, 1919 N.J. LEXIS 145

• Court: Supreme Court of New Jersey
• Decided: March 3, 1919
• Status: Published

Opinions

The opinion of the court was delivered l>y

White, J.

Plaintiff’s intestate, Sabino Aquino, was struck and killed by defendant’s trolley car running (at the rate of "about fifteen miles an hour”) eastward upon its private right of way between Denville and Boonton, shortly after ton o’clock of the night of June 24th. The track is ballasted with ' stone between and eighteen inches each side of: the rails, thus plainly indicating that it was not a public highway for pedestrian travel. The motorman, who was the only eyewitness of the accident, testified that Aqnino when struck was sitting crouched over with his head between his knees on the inside rail of the track upon which the car was running, about forty feet beyond or eastward of a public road crossing, at which there was a sign suspended marked “Trolley Station;” that in approaching this crossing h.o (the motonnan) blew his whistle six hundred feet before reaching it, and saw by the light of his headlight when two hundred and fifty feet away that there was no one at the crossing; that then, in pursu-. anee -of standing orders, he switched off the headlight to avoid blinding an automobile approaching in the opposite direction upon a public street running parallel with and adjacent to defendant’s right of way, and as he reached the crossing switched it on again, when, for the first time, he saw Aquino sitting a ear’s length ahead, as above described. The car was stopped about one hundred and sixty feet beyond the crossing and the mangled body taken from under its rear truck. Passengers on the ear testified to the search for the -body and to finding a cap1 and a bunch of keys and a watch and blood along the track at points tending in a general way to corroborate the motorman’s statement as to Aquino’s position when struck, but other witnesses, who made an examination next morning, blit took no measurements,.testified to finding blood nearer toward the crossing than that position. There was a slight curve (of about two thousand feet radius) in the track as it approached the crossing going east, and the right of way had high weeds between the tracks, but to a person at the crossing an approaching car was in plain unobstructed view for at least a quarter of a mile.

The learned trial judge directed a. verdict for the defendant, and in this, we think, he was right. If the deceased when struck was where the motorman said he was, he was a trespasser, and there was no evidence of circumstances in the case upon which liability could be predicated. If he rvas at the crossing waiting for a trolley, it -was his duty to stay in a place of safety as the car approached and not to place himself directly in its track. If he was crossing the track at the public crossing it was his duty to look for an approaching car before doing so, and if lie had looked he would have seen this car, for it was fully lighted, as the evidence shows, even while the headlight was switched off, and there was nothing to obstruct his view.

The ease is entirely different from Merkl v. Jersey City Railway Co., 75 N. J. L. 654, where the trolley car which struck and killed a man at night was running along and on a public street, where the man also had a right to be. This court there said that it could not be held, as a matter of law, in the absence of proof of negligent conduct, that it was contributory negligence for the man to be where he had a right to be. In the present case, the man’s right, assuming that ho was at the public crossing, was to cross defendant’s private right of way after' looking out for an approaching car. It was the obvious failure to perform this accompanying duty to look, which, under that assumption, caused the accident.

The judgment is affirmed.