244 F. 104 | 3rd Cir. | 1917
In this case Miss Jane T. Hall had brought suit in a state court against the West Jersey & Seashore Railroad Company, to recover damages for personal injuries. The cause was thereafter duly removed to the court below on the ground of diversity of citizenship. On trial that court gave peremptory in--structions for the defendant. On entry of judgment on such verdict, the plaintiff took this writ. The case turns on the alleged contributory negligence of the plaintiff. On the part of the defendant it is contended that the proof adduced by the plaintiff so clearly showed contributory negligence on her part that the court was bound, as a matter of law, to so hold. On the part of the plaintiff, it is contended that under the New Jersey statute of 1909 (P. E. p. 54), quoted in the margin,
“In our opinion, the railroad is mistaken in supposing that the act compels ' the trial judge to submit to the jury every case of injury or death at a protected grade crossing in New Jersey. The evidence may establish contributory negligence so clearly that the judge would be bound to give the jury binding instructions in favor of the railroad. The act does no more than declare as a rule of evidence that in certain situations the mere fact that the deceased did not stop, look, and listen shall not of itself defeat recovery; but it does not attempt to lay down a rule that every grade crossing case where contributory negligence is alleged must be submitted to a jury.”
‘‘Henderson was not a passenger, and Brommer was not a.quasi carrier; but the whole party were united for a common purpose and had a common object in view. Brommer had no greater duty or obligation toward the others than they toward him. It is true he was running the machine; but if anything threatening the general safety of the party came within the knowledge of any*107 of them, and he or she by timely warning was able to warn Brommer of such danger, and as a direct and proximate result of not doing so he or she suffered damage, how can it he said this was not negligence, and that thereby he or she did not contribute to causing the accident? * * * It follows, therefore, that Henderson was under obligations to take due care of his own safety. Ho was not a passenger for hire. lie was engaged in the common purpose of a pleasure ride with the driver of the machine. lie knew they were approaching a railroad crossing. Being free from the engrossing work of operating the machine, and occupying a seat beside the driver, he was in an even bolter situation than Brommer to look out for the safety of the machine. ® * He knew they were approaching a railroad crossing. As he approached he saw the view was shut off from the track. Thus ignorant of the safety or dánger of the crossing, prudence, self-preservation, and the positive demand of the law called on Mm to stop before attempting the passage. The machine was under control, by his own account, only moving at a two-mile rate. Tinder the circumstances he was called on to act, or, if lie chose to keep silence and-join in chancing the crossing, the law will not hold him faultless of his share of bringing about the accident.”
Tested by this rule, it is quite clear that this unfortunate plaintiff contributed her share toward this melancholy accident. She knew they were approaching this crossing,
The judgment below is affirmed.
“Whenever any railroad company shall have assumed to establish and maintain what, are known as safety gates at any railroad crossing in this state, and a person is killed or injured at any such crossing by being struck by a locomotivo or train when attempting to cross the tracks at a time when such gates are not down, » * * that in all such cases the question whether the person so killed or injured, upon attempting to cross such railroad crossing, at a time when the safety gates at such crossing are not down, was or was not guilty of contributory negligence shall be a question to be determined by the jury, in all actions brought to recover damages.”
“1. Wherever any railroad whose right of way crosses any public street or highway, lias or shall install ¡my safety gates, bell or other device designed to protect the traveling public at any crossing or has placed at such cross
Miss Hall’s testimony was: “Q. Just before this accident happened, did you know you were coming to a railroad crossing? A. I saw the railroad crossing; yes, sir. Q. What did the automobile do when you were getting to the railroad crossing? A. It slackened up. Q. What did you do? A. I looked both ways. Q. Did you see anything? A. Not a thing. Q. What was there, as the automobile slackened up first, to prevent your seeing down the track? A. There was a house on the corner. * * * Q. You started to go across the tracks, and what happened to you? A. I was hit by the train. Q. When did you first see the train? A. I did not see a thing. Q. I mean, when did you first see the train that struck you? A. Oh, when it was on us. Q. You mean ou top of the automobile? A. Yes.”