Decided: October 2, 1936.
ANNA E. LEE AND DAN E. LEE, PLAINTIFFS-APPELLANTS,
GEORGE PLATOFF AND ESTELLE PLATOFF, DEFENDANTS-RESPONDENTS
On appeal from the Supreme Court, Essex County Circuit.
For the appellants, David T. Wilentz.
For the respondents, Burtis S. Horner (Lindabury, Depue & Faulks, attorneys of record).
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Appellants, husband and wife, were crossing New York avenue at Thirty-eighth street, Union City, on February 17th, 1934, in the early morning. New York avenue is a one-way street with traffic moving northerly. The car of the respondents had passed in front of appellants. There is a single
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trolley car track in the center of the avenue. Appellants, in crossing the avenue, had proceeded, at least, to the center of this track, when, without warning or signal of any kind the car of respondents' backed down southerly and Anna E. Lee, appellant, was struck by its right rear bumper, knocked down and injured. The proofs indisputably show that neither of the appellants made any observation to their left, or north, after the car of respondents' had passed them.
The trial court held that, as a matter of law, they were guilty of contributory negligence and granted a motion for a nonsuit.
Error in so doing is the sole ground of appeal.
The action of the trial court was erroneous. Whether, as here, on a one-way street, the circumstances and conditions are such as to call for observation in the direction toward which traffic is permitted to proceed is, at best, a jury question.
Moreover we have the Traffic act (Pamph. L. 1915, p. 288, § 3, as amended, Pamph. L. 1918, p. 324), which provides:
"Before backing ample warning should be given and while backing unceasing vigilance shall be exercised not to injure those behind."
And this court has spoken with respect thereto. Rehfuss v. Prospect Boiler Co., 110 N.J.L. 349.
The judgment under review is reversed, and a venire de novo awarded.
For affirmance -- None.
For reversal -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, COLE, JJ. 15.