95 N.J.L. 428 | N.J. | 1921
The opinion of the court was delivered by
The plaintiff in this case sued to recover compensation for damage done to an automobile truck resulting from a collision between it and a train of the West Jersey and Seashore Kailroad Company, which the defendant was operating. The defence interposed was that the collision occurred largely, if not wholly, through the negligence of the plaintiff’s employe who was driving the truck at the time. At the trial, after both sides had rested, defendant’s counsel moved for the direction of a verdict, upon the ground that the driver’s negligence had been conclusively shown. The motion was opposed because, as plaintiff insisted, the question of contributory negligence, by force of the act of April 12th, 1910 (Pamph. L., p. 490), was one which could not be decided by the court, but must be left to the determination of the jury. The trial court considered that the statute appealed to did not apply to the present case, and directed a verdict in accordance with the defendant’s request. From the judgment entered on that verdict the plaintiff appeals.
The plaintiff’s truck was being driven along the highway from Woodbury to Salem. No gates, bell or other device usually employed to warn travelers on the highway of an approaching train had been installed by the'defendant, or by the company whose road he was operating, at the point where the railroad crossed the highway. Nor had any flagman been stationed there. The statute to which the plaintiff appealed provides that “in any action against any steam railroad company brought to recover damages for injuries or death occurring at any crossing of the right of way of such steam railroad company, where such company has not installed any safety gates, bell or device usually employed to warn and protect the traveling public at such crossing, which injuries
Considering, as we do, that the statute properly construed applies not only to persons who have suffered bodily injury, but also to persons who are injured by the destruction, in whole or in part, of property belonging to them, we conclude that there was error in refusing to submit to the jury the question of the contributory negligence of the plaintiff’s diiver; and that the judgment under review must be reversed.