32 N.J.L. 91 | N.J. | 1866
The opinion of the court was delivered by
The plaintiff’s action in this case was for injuries occasioned by one of the defendants’ engines striking him on the head, within the limits of the city of Newark, on the afternoon of July 20th, 1864. A verdict having been rendered in his favor, and his damages assessed at three thousand dollars, several reasons have been insisted on for setting aside this verdict and awarding a new trial.
In the first place, it was urged that the evidence did not wárrant the jury in finding that the agents of the company had been guilty of any culpable negligence.
It appeared that the plaintiff, a boy of the age of thirteen years and seven months, living near the road, who had been sometimes seen to jump on the cars as they passed, had been sent, by his grand-parent, across the railroad avenue to procure a basket of shavings, and while in the act of returning, was struck by an engine, attached to a regular train, proceeding at the usual time, from the direction of Elizabeth city towards New York. The boy’s attention appeared to be directed to a train which at the same time was coming from the opposite direction, on a track near to and east of that on which the Elizabeth train was running, so that he did not see or hear that train; and it was also testified that he was a little hard of hearing. The train coming from New York was the express train, and was said, by the plaintiff’s witnesses, to be running at the rate of about twenty-five miles an hour, and made a great deal of noise with the whistle and bell,
No street crossed the railroad avenue at the place where the boy was walking; but planks had been laid, by direction of the president of the company, for the convenience of foot passers, upon which he was attempting to cross, and which were opposite to and corresponded with a street called Johnson street, extending eastward from the railway. There were public streets on each side of, and parallel to, the railway tracks. No flagman was stationed at this crossing, but there were flagmen at all the crossings designated in an ordinance of the city regulating that matter, and this ordinance provided that such directions being complied with, the company should be allowed to run their trains at a rate of speed not exceeding twenty miles per hour, as to their mail or express trains, and should not be limited in the speed of their way trains to less than fifteen miles an hour.
There was evidence that the express train, was running at a rate exceeding twenty miles, which it would seem the defendants might have contradicted if it was not true; and there was also evidence that the Elizabeth train that struck the boy gave no proper warning by their whistle or bell.
But throwing these circumstances out of the case, I think the jury were warranted in considering the absence of a flagman, or some other means of protecting persons crossing at a place where trains sometimes met and continued their ordinary speed within the limits of a populous city, as culpable negligence. . The ordinance upon which the defendants so much rely, and which they claim to have strictly complied with, does not refer to, or by any fair inference authorize, the running of two trains, on contiguous tracks, in opposite
In coming to this conclusion, I do not overlook the fact, so manifest in the judicial experience of this country and England, that the sympathy of jurors is found very often to overmaster their judgments, so as to require very watchful vigilance by the courts, to prevent great injustice to railway companies who are required by the public sentiment, largely participated in by the jurors themselves, to keep up a high rate of speed. This court has never failed to maintain such vigilance, and is not likely to relax it. But to take every case, however complicated in its details, and doubtful as to its true character, from the decision of the jury, or to interfere with that decision when not manifestly wrong, would be quite as great errors, and quite as dangerous to the community, as to err in the other direction.
Railways are a great public benefit, and for the sake of that benefit our citizens cheerfully submit to the dangers that necessarily result. But the fact, that even when carefully managed, they are liable to do great injury to innocent individuals, makes it very important that every departure from the care and diligence justly demanded of them should be promptly and sternly rebuked. The true limit of discrimination between the court and jury, in deciding such questions, came under the consideration of the Court of Errors, in the case of The Central Railroad Co. v. Moore, 4 Zab. 824. The charge of the judge, in this case, was in conformity with the ruling in that case, and in my opinion the evidence upon the question of negligence was properly submitted to them and rightly decided by the jury.
In the second place, it was insisted that the plaintiff was himself guilty of negligence, and is thus precluded from any right of recovery.
The judge was asked to charge that the plaintiff, by being
In my opinion, the rule to show cause should be discharged, and judgment entered for the plaintiff.
Affirmed, 4 Vroom 430. Cited in Vanderbeck et al. v. Hendry, 5 Vroom 472; Bonnell v. Del., Lack. & West. R. R. Co., 10 Vroom 193; Blakers' Executrix v. Receivers of N. J. Midland R. Co., 3 Stew. 244.