On appeal from the judgments of the Supreme Court.
For the appellant, William Herda Smith.
For the respondent Public Service Co-ordinated Transport, Henry H. Fryling.
For the respondent Frederick J. Goeckel, Lum, Tamblyn & Colyer.
The opinion of the court was delivered by
WELLS, J. This appeal is from judgments of nonsuit entered in the Supreme Court after a trial at the Essex Circuit.
The action was brought by the plaintiff, as administratrix ad prosequendum of the estate of her deceased husband, who was killed in a collision with a truck owned by the defendant Frederick J. Goeckel, while alighting from a trolley car owned by the defendant Public Service Co-ordinated Transport.
At the conclusion of the plaintiff's case there was a motion to nonsuit in behalf of the Public Service Co-ordinated Transport on the ground that there had been no negligence shown on the part of that defendant and on the further ground that there had been contributory negligence shown on the part of the decedent, and also on the further ground that the decedent assumed the risk in alighting from a moving trolley car.
There was likewise a motion made on behalf of the defendant Goeckel, on the same grounds.
Both motions were granted by the trial court and the propriety of these rulings is the only question raised on this appeal.
The evidence submitted on behalf of the plaintiff disclosed the following state of facts.
The deceased, Samuel Trimboli, on the morning of August 25th, 1930, was a passenger on the Public Service Co-ordinated Transport trolley car, which was proceeding in a southerly direction on Elizabeth avenue, Newark, and when it approached Hunter street, which empties into Elizabeth avenue from the east, but does not cross it, the motorman gradually decreased the speed of the car for the purpose of making a stop opposite Hunter street. Prior to the making of the stop and while the trolley car was traveling at about three or four miles per hour, the door being open, the step down, the deceased stepped off the trolley car while it was thus moving slowly, and the trolley car proceeded three or ...