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Rizzolo v. Public Service Co-Ordinated Transport

Decided: May 24, 1933.

ROSE OCELLO RIZZOLO, IMPLEADED AS ROSE OCELLO, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOSEPH OCELLO, DECEASED, PLAINTIFF-RESPONDENT,
v.
PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-APPELLANT, AND ERNEST PICKELL AND JOHN WATSON, DEFENDANTS



On appeal from the Supreme Court.

For the defendant-appellant, Henry H. Fryling (James J. Higgins and William H. Speer, of counsel).

For the plaintiff-respondent, Brenner & Kresch (Alfred Brenner, of counsel).

Brogan

The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. This case presents an appeal from the Supreme Court, Hudson Circuit, wherein plaintiff, administratrix ad prosequendum, was awarded a judgment for $18,000 against the defendant Public Service Co-ordinated Transport the action against the other defendants Pickell and Watson having, by consent, been discontinued.

The facts disclosed are that on December 2d, 1928, at six o'clock in the evening, the plaintiff's intestate, a pedestrian, was at the northwest corner of Harrison avenue and Fourth street, Harrison, New Jersey, whence he attempted to cross to the southwest corner. The intersection is a busy one. The area is lighted by four arc lamps, one on each corner. A traffic light, located at the center of the intersection and operated by a police officer from a booth, directs the movement of traffic, east and west-bound as well as north and south-bound. Counsel for the respondent, in his oral argument and main brief, conceded that the traffic light was "against" this pedestrian at the time he stepped off the curb at the westerly crosswalk of Fourth street, to go straight across the roadway of Harrison avenue in a southerly direction, but in his supplemental brief he departs from this admission, arguing by way of justification that he overlooked testimony that tended to leave that important fact of the case in dispute.

At this juncture there were two trolley cars of the de-defendant corporation in this area, facing in opposite directions, one on the east-bound track which runs towards Jersey City, and the other on the west-bound track which runs towards Newark. The testimony was such that the jury might properly find that just prior to the accident both cars were at a standstill, either taking on or discharging passengers or both, the east-bound car having been stopped twelve or fifteen feet behind or west of the crosswalk along which the plaintiff's intestate came; that the west-bound car had stopped on Harrison avenue at or close to the easterly crosswalk; that Harrison avenue is forty feet wide from curb to curb; that Fourth street is thirty-six feet wide from curb to curb. When the traffic light showed green in favor of east and west-bound traffic, both cars started on their respective ways. This traffic signal (green) for east and west traffic to proceed of course meant that the north and south traffic was halted by an appropriate red light and at this time witnesses testified that the decedent was about in the middle of the roadway of Harrison avenue and, at the approach of the east-bound car which then had moved to within four or five feet from him, he

attempted to retrace his steps when, apparently, he noticed the west-bound car approaching and, turning, he went in a westerly direction, the result being that he was caught between the two cars, crushed, and received injuries from which he died.

The court denied defendant's motion for nonsuit at the end of the plaintiff's case and for that reason alone defendant appeals, alleging as the sole ground for reversal that a nonsuit should have been granted because the defendant was guilty of no negligence and, further, that the plaintiff's intestate was guilty of contributory negligence. To reverse the judgment, therefore, it must appear that the defendants were not guilty of negligence or of conduct from which negligence might legitimately be inferred or that the conduct of the plaintiff's intestate was such that he should be adjudged guilty of contributory negligence as a matter of law.

On the first point as to the defendant's negligence, if any, there was testimony to support a conclusion by the jury that at the time the decedent stepped off the curb to cross the roadway the trolley cars were at a standstill; both of them had headlights; the area in question was also lighted. There was testimony that no warning bell was sounded. The operator of the east-bound trolley in his testimony, said he never saw him (decedent) until he was in the middle of the street. On further questioning as to whether anything prevented him from seeing him, he replied, "maybe I didn't look." In the next answer he contradicts this by saying, "I looked. I had the light. I didn't look neither way." Is it the conduct of an ordinarily prudent man operating a trolley car, under these circumstances, not to look both ways? Obviously, a jury question is presented when the witness, himself a defendant, says as here that perhaps he didn't look, then says he did, but ...


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