Opinion
Argued February 15, 1933 —
Decided April 28, 1933.
The infant plaintiff, while riding on a sled down a street which had been a favorite place for coasting when the ice and snow permitted, for ten years, was injured by colliding with an auto bus of the defendant, driven along an intersecting street. A companion of the boy had stationed himself at the intersection to signal when it was safe to come down the hill, and after he gave the signal, and plaintiff had started down the hill, the bus suddenly loomed in sight, and while the driver slowed down when the other lad warned it to stop, he again resumed his speed, and the collision of the sled with the bus resulted. Held, that the proofs might indicate a lack of care in the operation of the bus, and no lack of care in operating the sled, and that it was for the jury to determine whether the accident was due to the negligence of the bus driver and whether there was contributory negligence on the part of the plaintiff.
On appeal from the Supreme Court, in which the following per curiam was filed:
"The defendant appeals from a judgment in favor of the plaintiffs. The case arose out of a collision between a sled and a bus. The infant plaintiff and a companion were coasting in an easterly direction on Magnolia avenue, Cresskill. Across the line of Magnolia avenue runs Jefferson avenue upon which the defendant's bus was being propelled in a southerly direction.
"The grounds of appeal are as follows: (1) Because the court refused to nonsuit the plaintiffs; or (2) direct a verdict for the defendant; (3) because the court refused a charge as requested.
"1 (and 2) The first two grounds of appeal are not well taken. The case is somewhat analogous to Lynch v. Public Service Corp., 82 N.J.L. 712, 716. That case involved a collision between a trolley car and a bobsled. There was evidence of some care taken by those riding on the bobsled and some evidence of a lack of regard for their rights by the operator of the trolley car, who appeared to have some knowledge of the use of the hill across his line by coasters. The Court of Errors and Appeals there said the question of the negligence of the operator of the car and the contributory negligence of the plaintiff was clearly for the jury. In the present action, it appears that for nearly ten years Magnolia avenue had been a favorite place for coasting parties when the ice and snow permitted. Of course, the place was not free from danger and the town authorities had taken steps to break up the practice. Ashes had sometimes been sprinkled across the roadway, but not on the day in question.
"The infant plaintiff had stationed a lad of fourteen at the center of the intersection to signal when it was safe to come down the hill. After this boy gave the signal the sled started down the hill, when suddenly the bus loomed into sight. The signal lad waved for the bus to stop. It may be inferred that the bus driver observed the signal because he slowed down, but again resumed his speed and the boy, who had given the signal, was obliged to jump out of the way. The infant plaintiff drove his sled into the south curb of Magnolia avenue, throwing off his companion. He was not so fortunate, because the sled slid away and came up against the rear of the bus and the boy was seriously injured. The bus came to a stop about forty-five feet beyond the street line.
"A physician, well aware of the coasting practice, brought his car to a stop before passing over the intersection and observed the coasters, the bus and the boys at the intersection. He realized that an accident was most likely.
"We think the state of the proofs might indicate to a jury a lack of care in the operation of the bus and no lack of care in the operation of the sled, which the bus driver might reasonably anticipate would be at the point because of the fine weather and the customary use of the hill in question for this purpose when covered with snow and ice. Further, he could have seen the boys on the sled before he did, if he had looked.
"The credit to attach to testimony is, of course, for the jury. There was testimony that indicated that the bus driver made no suitable observation, failed absolutely to understand the signals given by the signal boy and a volunteer whom he also observed. And although he may have blown his horn and may not have been proceeding at a rapid rate of speed, still the tires on the bus were not equipped with chains or other nonskid devices with the result that the bus skidded for some distance.
"The mere number of witnesses does not solve the weight of evidence. The circumstances that some of the passengers in the bus observed the dangerous position of the boys on the sled and called to the driver to stop was some evidence of a lack of care upon his part. All the evidence considered, we think, made the case one properly for the jury.
"(3) The trial court was requested to charge as follows: `The court charges you that although the sled was approaching from the right of the bus, if this bus reached the crossing first and was traveling at a reasonable rate of speed, this bus had the right of way.' He read this request and said: `Not necessarily that, but the law has said that if two vehicles reach an intersection at the same time, the one proceeding in the other direction shall give way to the one at the right.' The rule of law requested was laid down by Chief Justice Gummere in Knox v. North Jersey Street Railway, 70 N.J.L. 348, as follows: `The rule of the road, with relation to vehicles approaching a street crossing, is that the first to reach the crossing, traveling at a reasonable rate of speed, has the right to pass over first. Electric Railway Co. v. Miller, 59 Id. 423; Earle v. Consolidated Traction Co., 64 Id. 573. This rule is a part of the common law of the state and applies to vehicles of every character.'
"In Mazzei v. Nucar Forwarding Corp. et al., 105 N.J.L. 218, Judge McGlennon said: `The statute ( Comp. Stat. 1924, §§ 179, 691) regulating the use of the highways, provides: "Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection, to any vehicles approaching from his right." This provision clearly means that when two vehicles under exitsing conditions are likely to reach the intersection at approximately the same moment, the right of way shall be yielded "at such intersection" to the one approaching from the right. It does not apply to a situation where one vehicle crosses an intersection and is already past it, before another arrives at the intersection. Furthermore, we have repeatedly held that a violation of such regulations is not, per se, negligence, but is merely a factor to be considered where applicable to the situation.'
"It may be that the bus first reached the intersection. If so, the court properly charged the jury, but he also mentioned another rule of the road when there was simultaneous arrival at the point of intersection. It was after all a question for the jury as to what the facts were, and we fail to see where the defendant was prejudiced, by the modification of the request.
"The judgment below is affirmed, with costs."
For the appellant, Henry H. Fryling ( William H. Speer and Carl T. Freggens, of counsel).
For the respondents, Breslin Breslin.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, HEHER, VAN BUSKIRK, KAYS, DEAR, WELLS, JJ. 10.
For reversal — None.