74 N.J.L. 469 | N.J. | 1907
The opinion of the court was delivered by
This suit is brought by the administratrix of Joseph J. Holmes, deceased, to recover from the defendant corporation the pecuniary loss sustained by his widow and next of kin through his death. He was killed, about two o’clock in the morning of the 4th of November, 1902, while driving along Cooper street, in the town of Beverly, in attempting to cross the tracks of the defendant company in front of an approaching train. The sole ground averred in the declaration for charging the defendant company with responsibility for his death is the failure to use reasonable care in the operation of its train as it approached the crossing at which he was struck down. Upon the trial of the cause the plaintiff attempted to support the averment of negligence by proof that the statutory provision, requiring a bell to be rung, or a whistle to be blown when a train ap
“Q. Did you hear any bell rung or whistle blown for the train ?
“A. No whistle at all.
“Q. Nor bell?'
“A. I don’t know; I wouldn’t like to say whether I heard any bell or not.”
On his cross-examination he affirmed the statement made by him in Ms testimony in chief. The other witness was a Mrs. Wilmerton, who lived about half a square from the scene of the accident. She testified that she had occasion to get up about two o’clock in the morning of November 4th, and that about ten minutes afterward, and before she had returned to her bed, she heard a heavy crash coming from the direction of the crossing. She was asked but a single question upon the point in controversy, viz., “Did you hear the whistle blow or the bell ring?” Her answer was “No, sir.”
On the part of the defence the proof was plenary that the bell was rung, if the witnesses who were called to prove that fact were entitled to credit. They were the engineer, the fireman and one of the brakemen of the train; and they all swore positively that the bell was rung in a way which showed full compliance with the statute. This was the state of the proofs when the ease was rested; and upon application made by the defendant the trial judge directed a verdict in its favor.
The plaintiff now assigns error upon this direction.
In our opinion the proofs in the cause afford no support Avhatever for the conclusion that the bell was not rung in the manner required by the statute. The testimony of Wick-ward did not even tend to prove that fact, for it will equally justify a finding that he heard the bell as that he did not.
We concur.in the view taken by the trial judge that the plaintiff below failed to sustain the burden of proof that was upon her to show that the bell was not rung in the manner required by the statute.
It is further contended on behalf of the plaintiff in error that there was testimony in the case which would justify the conclusion that the crossing at which the accident occurred was unusually dangerous, by reason of the existence of obstructions to the view in the direction from which the train that collided with the wagon of the deceased was approaching; that the defendant company was responsible for the presence of those obstructions; and that, therefore, it was bound to use extra precautions for the safety of travelers upon the highway; to do something more to warn them of the approach of trains than to blow a whistle, or to ring a bell; and it is argued that the plaintiff was entitled to have that question submitted to the jury, and to a verdict in her favor in case they should so find the fact. No such issue, however, was raised by the pleadings, and a verdict upon any such theory could not, therefore, have been supported.
The judgment under review must be affirmed.
For affirmance — The Chancellor, Ci-iiee Justice, Garrison, Garretson, Hendrickson, Swayze, Keed, Trenchárd, Bogert, Yredenburgi-i, Yroom, Green, Gray, Dill, J.J. 14.
For~reversal — N one.