57 N.J.L. 149 | N.J. | 1894
The opinion of the court was delivered by
On the evening of November 16th, 1892,. about a quarter past ten o’clock, the deceased was walking-northerly, on the easterly sidewalk of Fourth street, in the town of Harrison, apparently going towards his home, in Hamilton street, where he had resided for over four years previously. "When he had nearly reached Essex street and was about on the northerly tracks of the main line oi the-Delaware, Lackawanna and Western railroad, he was struck by a locomotive of that road, which -was drawing a passenger • train on the westbound tracks, from Hoboken to Newark. It was running at the rate of about twenty-seven miles an hour. He was instantly killed. The only witness for plaintiff that saw him while he was near to and approaching the - railroad tracks, and was thereon, and who saw him struck, was Mary Killan, who lived on the third floor of the house on the northeast corner of Fourth and Essex streets, a short distance north of the place where the deceased Avas killed. She was looking out of the Avindow, waiting for her husband. It was a, cloudy, dark night. It was not raining, but there Avere no moon or stars visible. When she first saw him he - was walking along the easterly sidewalk of Fourth street, coming northerly, towards her house, and when he was struck he had his foot on the railroad tracks nearest her, and then she saw that he wanted to get back, but he could not, as the train struck him before he could retreat. She could not see who it was, and thought it might be her husband. Gates had been constructed at this crossing for a year or more ■before the accident, but they had never been used up to that time, .and there never had been any flagman stationed there. Deceased was familiar with this 'locality and its dangers, as ■
It was clear, at the close of plaintiff’s case, that deceased did not look for an approaching train before going on the tracks to cross them. At the rate the train was running, it would have taken the train about twenty-five seconds to run the one thousand feet from Sixth street to the place of the accident. It would have been clearly imprudent for deceased to have attempted to cross the tracks in front of such a train, if he had looked. It would seem to be that, hearing no whistle or bell and no sound of an approaching train, deceased looked neither to the right nor the left, and, using no precaution whatever, walked straight ahead up Fourth street and over these tracks, and never did anything until the train was
This was the condition of the case at the end of plaintiff’s case, and there was no evidence thereafter that helped it in any way.
The defendant asked for and the trial judge refused to grant a nonsuit, and an exception was allowed to this ruling.
“The plaintiff had a right to cross the railroad at that place, if, in so doing, he exercised care to avoid collision with trains of the company. By law, the plaintiff was charged with the duty of looking and listening before he attempted to cross.” Berry v. Pennsylvania Railroad Co., 19 Vroom 141.
“A railroad track is a place of danger, and anyone who incautiously places himself upon it, and sustains damage in ■consequence of such carelessness, is entirely remediless. The law requires of all persons approaching such a point of peril the exercise of a reasonable caution, and if this duty is neglected and an accident thereby occurs, it says to those who are thus in default that they must bear the ill which is the product, in whole or in part, of their own folly.” Pennsylvania Railroad Co. v. Matthews, 7 Vroom 531.
There was in this case no distracting danger from any other source, as in the case of Connelly v. Trenton Passenger Railway Co., 27 Vroom 700. This is not a case where an examination of the evidence showed sufficient for “fair debate” as to the conclusion in relation to the question of contributory negligence of deceased, as in the case of Delaware, Lackawanna and Western Railroad Co. v. Shelton, 26 Id. 342.
The deceased was not relieved of the duty of exercising the highest practicable degree of care in avoiding the danger to •himself, and of looking each way for an approaching train, before crossing, because of the neglect of the defendant in failing to give proper statutory signals by ringing the bell or blowing the whistle on the locomotive. It was so held in Pennsylvania Railroad Co. v. Righter, 13 Vroom 180, where this court reversed a judgment for plaintiff, on the ground
Where it clearly appears, as it does in this case, on the plaintiff’s own showing, that the deceased contributed, by his own carelessness, to the accident which caused his death, it was the duty of the trial judge to have nonsuited the plaintiff,, and error lies for the refusal so to do. New Jersey Express Co. v. Nichols, 4 Vroorn 434; Delaware, Lackawanna and Western Railroad Co. v. Toffey, 9 Id. 525.
The judgment should be reversed and a new trial ordered..
For affirmance — None.
For reversal — The Chancellor, Chief Justice, Abbett, Depue, Dixon, Garrison, Magie, Reed, Yan. Syckel, Bogert, Brown, Krueger, Sims. 13.