70 N.J.L. 241 | N.J. | 1904
The opinion of the court was delivered by
The plaintiff, the father of Agostino Albanese, and the administrator of his son’s estate, brought suit in the Supreme Court to recover compensation for the pecuniary loss sustained by himself, as next of kin, in consequence of his son’s death.
The circumstances in which the son was killed appear to have been as follows:
In September, 1901, the son, being then about seventeen years of age, was emp^ed by a contractor engaged in
At the trial of the cause in the Essex Circuit the plaintiff produced no evidence that there had been any custom on the part of trainmen to give signals to the men working on or near the tracks, and one of the workmen examined by the plaintiff, being asked on cross-examination whether any rules or signals or instructions were given to the men about the approach of trains, answered, “No-, no one; everyone looked out for himself.”
At the close of the plaintiff’s evidence a nonsuit was ordered, on the ground that Agustino must be held to have assumed the risk of working at or near the track without any warning by bell or whistle of approaching trains, and that his failure to get out of the way- must be charged in part to his own negligence.
We think this order was erroneous.
That it was the duty of the defendant, having undertaken to elevate its tracks while using them for the passage of trains, to take reasonable care for the safety of workmen who, in the prosecution of the work, might properly be on or near the tracks, was settled in Delaware, Lackawanna and Western Railroad Co. v. Hardy, 30 Vroom 35, 562.
In the present case the fact that there was no custom to give signals and that no instructions were issued to workmen about the approach of trains may have resulted from a. belief that, ordinarily, the workmen were exposed to no danger which, with reasonable care they could not avoid, that, ordinarily, they could “look out for themselves,” but
It thus becomes evident that, when Agustino, in the discharge of his duty, placed himself in a position of danger which would be apparent to the engineers of approaching trains, he had a right to expect a warning from those engineers. If there be a right to expect a warning, it makes no difference in principle whether the right springs from custom, as in Harmer’s case, or from usual conditions, as in Hardy’s ease, or from exceptional conditions, as in the present case, and under such circumstances questions concerning- the assumption of risk and contributory negligence cannot be 'decided by the court against the party injured. They are for the jury.
The judgment of nonsuit should be reversed and a venire de novo awarded.