76 N.J.L. 660 | N.J. | 1909
This is a case of collision at a railroad crossing. The train which killed the decedent was operated by the Pennsylvania Eailroad Company; the railroad on which it ran was controlled by the New York and Long Branch Eailroad Company. The negligence alleged against the latter company was the failure to provide safeguards at the crossing other than the statutory signals required of its co-defendant. The trial judge charged that there was but one question of negligence or want of care against each company—against the Pennsylvania, the alleged failure to ring a bell; against the New York and Long Branch, the alleged failure to provide safeguards other than the signals' on the locomotive, by reason of conditions existing at the time it laid its tracks there. These conditions were said to be the existence at the time of the location of the railroad of a brush or woods tract, which remained substantially the same until the time of the accident. The defendants excepted to so much of the charge as permitted the jury to find a verdict against the New York and-Long Branch Eailroad upon the theory of ■ being obliged to adopt extraordinary precautions beyond the statutory signal. Thereupon the jury were recalled and told that the liability to give other protection only arose when the railroad company had either by locating its line in a dangerous place or by its own act created dangers which made the place of crossing especially dangerous. Thereupon the defendants excepted to so much of the charge as permitted the jury to find the company liable if it did not adopt extra precautions. There was no evidence of special danger except that caused by the brush or woods.
The charge in effect permitted, if indeed it did not require, the jury to find the Long Branch railroad liable for its failure to adopt extra-precautions merely because the brush or woods existed when it located its road. If the charge required such a finding, it was clearly injurious because it laid down as a proposition of law what should have been left to the jury, as was done in Pennsylvania Railroad Co. v. Matthews, 7 Vroom 531; New York, Lake Erie and Western Railroad Co. v. Ran
As the case must be tried again it may be well to point out that in another respect the charge was too favorable to the railroad company. It limited the company’s liability to the ease where the condition existed at the time the tracks were laid. The authorities do not so limit it. The Matthews case holds that the extraordinary duty exists in cases where the
The case of New York, Lake Erie and Western Railroad Co. v. Leaman, 25 Vroom 202, is not to the contrary. We were careful to say that that case did not involve any question of gates or flagmen, and that there was nothing in the particular circumstances that would permit that question to be left to the jury. The question there was whether the statutory duty to give audible signals was to be supplemented by additional and varjdng duties by reason of meteorological considerations —the direction of the wind, the cloudy or clear condition of the atmosphere, the presence of rain or fog. '
• We are clear that there was error in the charge injurious to the Long Branch road. Tire exception called attention to
For affirmance—Ti-ie Chancellor, Minturn, Bogert, J.J. 3.
For reversal—Ti-ie Ci-iiee Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voori-iees, Vredenburgi-i, Vroom, Gray, Dill, J.J. 12.