Shay v. Camden & Suburban Railway Co.

49 A. 547, 66 N.J.L. 334, 37 Vroom 334, 1901 N.J. LEXIS 106

Opinion

Per Curiam.

First. There was no error in refusing to nonsuit the plaint-tiff, for there was proof from which the jury might infer the negligence of the motorman who was running the car in which Mrs. Shay was a passenger.

Second. The collision of the car with the wagon undoubtedly occasioned some physical injury to Mrs. Shay. Such injur}' would justify an award of damages, and if it produced fright or other mental disturbance, damages therefor might be included. Lambertson v. Consolidated Traction Co., 30 Vroom 297; S. C., 31 Id. 457.

Third. Defendant was a carrier of passengers, and had accepted Mrs. Shay as a passenger. It owed her a duty to carry her safely. Proof of the happening of a collision between the car in which she was carried and a vehicle in the public streets, an accident which, in the ordinary course of events, would not have happened if the proper care had been used by the motorman, raised an implication of negligence on the part of the company. It was for the company to establish that the motorman was not, in fact, negligent. The request to charge that the plaintiff must establish negligence by preponderance of evidence .was improper, and there was no error of the court in refusing to thus charge. Bergen County Traction Co. v. Demarest, 33 Vroom 755.

Fourth. Considering the duty of the defendant Mrs. Shay arising from the relation between the carrier and the passenger, the charge that the duty of the company, in running the cars, required a very considerable degree of care, was not an overstatement of the company’s duty. The company had no reason to complain of this definition of its duty.

Fifth. The charge on the subject of damages was, in all' respects, correct, and the request was substantially complied with.

No error being found, the judgment will be affirmed.

For affirmance — Twe Chancellor, Chief Justice, Van Syckel, Dixon, Gummere, Collins, Fort, Garretson, Hendrickson, Bogert, Krueger, Adams, Yredenburgh, VOORHEES, YrOOM. 15.

For reversal — None.