75 N.J.L. 490 | N.J. | 1907
Lead Opinion
The opinion of the court was delivered by
The single assignment ■ of error in this case presents the question whether the trial court properly directed a verdict for the defendant railroad company.
The suit is brought to recover compensation for injuries received by the plaintiff through being struck down at a highway crossing by one of the defendant company’s trains. The case made by the proofs submitted on behalf of the plaintiff, and supplemented by the undisputed testimony of the defendant, was as follows:
It is so thoroughly settled by the repeated decisions of this court that it is the duty of the traveler upon a highway, before crossing a railroad, to look up and down the tracks, and also listen for approaching trains, and that his failure to do so is such negligence as will prevent a recovery if he is run down at the crossing, even if it be shown that no warning of the approach of the train was given by those operating it, that a citation of the cases is unnecessary. That the duty referred to must be performed, if the surrounding conditions permit it, at a time when its performance will be an efficient means of warning the traveler of peril, if peril exists, has also been frequently declared by this court. Merkle v. New York, Lake Erie, &c., Railroad Co., 20 Vroom 473; West Jersey Railroad Co. v. Ewan, 26 Id. 574; Central Railroad Co. v. Smalley, 32 Id. 277; Swanson v. Central Railroad Co., 34 Id. 605. The plaintiff made his only observation immediately after crossing over the siding. He had then an unobstructed view of over a mile in the direction from which the train was approaching. His failure to see it was necessarily due either to the fact that the train was not yet in sight, or to his looking so carelessly as not to perceive what was plainly within his view. If the latter was the reason for his ignorance of the approach of the train, the direction of a verdict for the defendant was clearly right, for his failure to observe it places him in the same position, so far as the question of his negligence is concerned, as if he had perceived it and had then attempted to cross over the track in front of it. If his failure to detect the approach of the train was due to the fact that it was not yet within the range of his vision when he made his observation, then the accident was the result of his riding over the space intervening between the siding and the northbound track and then remaining upon that track, without again looking or listening, until he was run down, during which period the train traveled a distance of considerably more than a mile. His failure in this regard was a neglect to perform the duty of looking and listening at a time when
We find no error in the judicial instruction complained of, and the judgment under review must be affirmed.
Dissenting Opinion
(dissenting). I think that there was testimony from which the jury might properly have found that the plaintiff did not know that the planking at the railroad crossing had been torn up until he had turned at nearly a right angle onto the crossing, and was actually engaged in crossing the tracks. At this juncture he was confronted with the unexpected condition of the crossing and also with the duty of looking for trains. If without negligence on his part the plaintiff found himself in this position, the question whether he exercised such care for his safety as a reasonably prudent person would exercise under the circumstances was a jury question. It would be so even in the case of an adult— still more so is it the rule in the case of an infant. Deeming that there was a jury question upon one phase of the testimony, I think the direction of a verdict was erroneous.
For affirmance — Magee, Chancellor, The Chief Justice, Hendrickson, Reed, Vredenburgh, Green, Gray, Dill, J.J. 8.
For reversal — Garrison, Trenchard, Bogert, J.J. 3.