
    MICHAEL FARESE, WHO SUES, &c., DEFENDANT IN ERROR, v. NORTH JERSEY STREET RAILWAY COMPANY, PLAINTIFF IN ERROR.
    Submitted March 20, 1908
    Decided June 8, 1908.
    Where a boy fifteen years of age, in attempting to cross a trolley track, is struck and injured by a car upon a dark, foggy and misty night, and the testimony in his behalf demonstrates that he could have seen the car far enough distant to avoid the accident had he looked, the fact that he testified that he looked and did not see the car will not entitle him to a verdict.
    On error to the IJuclson Circuit.
    Before Gummere, Chief Justice, and Justices Bergen and Minturn.
    For the defendant in error, Alexander Simpson.
    
    For the plaintiff in error, Edwards & Smith.
    
   The opinion of the court was delivered by

Minturn, J.

About seven-thirty o’clock on the evening of August 10th, 1904, the plaintiff, a boy fifteen years of age, while attempting to cross Harrison avenue, in the town of Harrison, was struck by a car of defendant and injured. The night was dark, foggy and misty, after rain. The plaintiff resided in the town during many years, and was familiar with the locality. The headlight on the car was lighted, and the car was lighted inside. The plaintiff explains the accident by stating, that while he looked when he was leaving the curb, he could not see the car; although he admitted he could see lights in a store some few houses distant. The only other witness who saw the accident was McGurgan, who testified that while standing in front of his house on the avenue he saw the boy start to cross the street, about seventy-five or a hundred feet away; that when the boy was on the first rail, the car was about fifteen or twenty feet away; that he could see a dim light, and an electric light inside the car after the accident; and that the accident happened “like a flash.” The plaintiff testified that when leaving the curb he looked both ways for a car, but saw none and heard no noise; and did not see the car until he was struck by it.

It is difficult to perceive how the plaintiff could have exercised the care the law required of him, before attempting to cross this track, and not have seen or heard the car coming. Pie confesses that he could see the lights in a store, presumably seventy-five feet away, and his witness McG-urgan admits that he could see one hundred feet distant; and from , where he stood could see the car fifteen or twenty feet away from the plaintiff. While the care cast by law upon one crossing a public street is not as great in degree as that imposed upon one crossing a steam railroad track, still the duty of using one’s senses and powers of observation, upon such occasions, is so clearly established that citation of authority at this time to support the obligation must appear unnecessary. Brady v. Consolidated Traction Co., 35 Vroom 373; Harbison v. Camden Railway Co., 45 Id. 252.

The plaintiff’s story that he did not see the car is incompatible with the situation and the circumstances, as elicited from himself and his .own witnesses; and the conclusion inevitably results, that if he did not see the car, it was manifestly because he did not exercise the care required by law, in which event he must have seen it.

A nonsuit should have been granted, and the judgment will therefore be reversed.  