On appeal from the Supreme Court.
For the plaintiff-appellant, Andrew O. Wittreich.
For the defendant-respondent Arthur Hestifer, Carl T. Freggins.
For the defendant-respondent Public Service Co-ordinated Transport, Henry H. Fryling (William H. Spear and James O. Boyd, of counsel).
The opinion of the court was delivered by
WELLS, J. The appeal is from a judgment entered upon the granting of a nonsuit by the trial court sitting in the Supreme Court with a jury at the Essex Circuit.
The plaintiff sued to recover damages for personal injuries sustained by him while he was a passenger on a trolley car of the Public Service Co-ordinated Transport (hereafter referred to as the Transport).
The action was against the Transport, Arthur Hesterfer, impleaded as Arthur Hestifer, the operator of the westbound car in which plaintiff was riding, and Daniel Hanifin, impleaded as Daniel Hanifan, the operator of the eastbound trolley car which was also involved in the accident. On the evening of November 10th, 1936, sometime after six-fifteen, the plaintiff boarded at Newark one of the Transport's trolley cars for his home in Montclair. After paying his fare he sat down between two other passengers on the long seat at the left front of the westbound car with his back toward the window. Bloomfield avenue in the vicinity of the accident is
straight and has two sets of tracks, one running east and the other west.
The appellant's version of the facts preceding, during and immediately following the accident is thus stated in his brief:
"The trolley traveled through Newark and on into Bloomfield Avenue, Bloomfield. As the car traveled along this avenue, it started going down a hill at the intersection at Ella Street, and Hill Street, at a fast rate of speed. Wilson then saw the conductor" (meaning the operator) "whom he had been watching, suddenly turn his head and duck. The next thing there was a big bang and he was knocked out of his seat and to the floor of the trolley. After the accident, he was taken in the car to Montclair and then taken to the Mountainside Hospital, where he was treated for his injuries.
"Arthur Hestifer, the operator of the trolley in which the plaintiff, Wilson, was a passenger, testified that as he drove west on Bloomfield Avenue, between Hill and Ella Streets, down-grade, he saw an eastbound car, and when three or four hundred feet down the incline, there was a crash as the cars passed one another. The headlights of the trolley were on and with the light they threw, he could see a couple of blocks ahead. He did not notice anything on the side of the trolley as it came towards him. After the crash, he stopped his ...