On appeal from a judgment of the Essex County Court of Common Pleas.
For the appellant, Lum, Tamblyn & Fairlie (James Raymond Berry, of counsel).
For the respondent Public Service Co-ordinated Transport, Henry H. Fryling (James O. Boyd and William H. Speer, of counsel).
For the respondents Kroehler Manufacturing Co., Inc., and Melvin Allen, Foley & Francis (John J. Francis, of counsel).
Before Brogan, Chief Justice, and Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. This is an action in tort for negligence. The trial judge granted a nonsuit as to all three defendants; and the primary question at issue is the propriety of that ruling.
On May 12th, 1936, the plaintiff, Byron, was a passenger on a trolley car of the Public Service Co-ordinated Transport, moving west on Market street, in the city of Newark. He was seated on the right-hand side of the vehicle, with his right arm resting on the windowsill. It was a warm day, and the window was open. He concedes that his elbow extended about two and a half inches "outside the window." While so situated, a motor truck of the Kroehler Manufacturing Co., Inc., driven by Allen, proceeding in the same direction, came into contact with the protruding elbow and inflicted injuries for which recovery is sought in this action. The truck was ten feet eight inches high and eight feet wide. Metal "spools" or "buttons," designed to hold the tailboard tie rope, jutted out from either rear side of the body.
First: It was reasonably inferable from the evidence that, while the trolley car was moving slowly between Broad and Halsey streets -- "inching along, trying to get ahead," in "heavy traffic," was Byron's description of its movement -- the Kroehler Company's truck, advancing at a greater rate of movement, was driven so close to the trolley car as to collide with Byron's projecting elbow; and under all the circumstances it was the jury's province, in a special and peculiar sense, to determine whether the mishap so suffered by Byron was within the realm of reasonable prevision as regards the operator of the truck -- one that the exercise of due care for Byron's safety would have obviated. Byron himself testified that his arm had been in this identical position on the car windowsill from the time he took his seat immediately upon boarding the car, several blocks east, until struck by the truck.
It was incumbent upon the truck operator to employ such care for the safety of other users of the highway as a reasonably prudent person would have exercised under like circumstances, and this of necessity implies observation of the roadway effective to a discharge of that duty. It was for the jury to determine whether the non-observance of this obligation was the proximate cause of the injuries.
And there was no tangible basis in the evidence for the inference, proposed as justifiable by counsel for the Kroehler Company and its co-defendant Allen, that the trolley car, proceeding at a greater rate of motion, was passing the truck when the collision occurred. True, Byron testified that he "could not tell" whether the truck was in motion at the time he "felt the pain;" but this does not in and of itself support the hypothesis thus tendered by these defendants. Byron's testimony that, when struck, his "arm went * * * forward," and that he was "pulled * * * forward," plus that relating to his observations immediately before, affords a rational basis for the conclusion that the truck was passing the trolley car when the collision took place. It was for the jury to assay this evidence. Sivak v. New Brunswick, 122 N.J.L. 197.
The law does not brand as negligence per se the extension of an arm beyond the car windowsill thus admitted by Byron. Such is not a breach of an absolute duty that under any and all circumstances is denominated negligence. Whether it should be so termed in the particular circumstances is ordinarily a question for the triers of the facts. Thibodeau v. Hamley, 95 N.J.L. 180. See, also, Gavin v. Cohn & Slotnick, 5 N.J. Mis. R. 296.
And so it was error to enter a nonsuit as to these defendants.
Second: But, as regards the Public Service Company, the judgment of nonsuit is ...