62 N.J.L. 536 | N.J. | 1898
The opinion of the court was delivered by
The plaintiff’s declaration contains two counts, one for personal injury to the plaintiff and the other for loss sustained by him from personal injury to his wife— both husband and wife having been thrown from a wagon on a public highway. In the averment of negligence each count is the same, and recites that the defendant operated a railroad, and on a day named, was, by its servants, engaged in running an engine and train of cars thereon, and that the plaintiff was driving on a public road; and then avers that, “nevertheless the said defendant, by its said servants, at a point less than fifty feet from where the said railroad crosses the said public road,, at grade, near a station or depot called “ Kings,” as said plaintiff was nearing said crossing, and without hav
In Bittle v. Camden and Atlantic Railroad Co., 26 Vroom 615, the Court of Errors and Appeals decided that a case was made for a jury when.it was proved that the defendant’s engineer saw the plaintiff holding his horse by the head, and, under circumstances indicating a purpose to frighten the horse, suddenly blew an unusually loud blast on the whistle of the locomotive, which did in fact frighten the horse and lead to injury to the plaintiff. In the opinion read for the court it was incidentally said that a railroad company is bound to use reasonable care and prudence in giving statutory signals of the approach of a train or of its existence at any given point where such signals may be allowed or required, and that negligence in the exercise of the lawful right to give such signals is actionable if it causes injury, and also that the failure to give the statutory signals until just upon a road crossing is evidential on the question, but this decision is very far from holding that the blowing of a locomotive whistle in any other way or at any other time than within the direction of the statute, is an improper act. Warning for crossings is but a small- part of the use of such a whistle. The statutory duty is .to ring the bell or blow the whistle, from a distance of three hundred yards, until the crossing is passed or the engine has stopped. Gen. Stat., p. 2669, pl. 117. It is not logical to say that an act that is permitted under certain conditions is thereby prohibited under any other conditions. It is com
No one will contend that a simple averment that a plaintiff was, through negligence of the defendant, thrown from his own wagon, would fairly apprise the defendant of the breach of duty or of the negligence intended to be charged. The added allegation that the negligence was in the running of a train and the blowing of a whistle is to my mind equally unsatisfactory.
We are precluded, however, from giving effect to the defendant’s challenge of this declaration, because this .court, when a count almost identical was before it, adjudged that its defects were formal only, and therefore not within the reach of a general demurrer, and that the defendant’s remedy was by motion to strike out. The case is Reed v. Central Railroad Co., decided at November Term, 1890, but not rep.orted. The memorandum filed refers for a precedent to Van Horn v. Central Railroad Co., 9 Vroom 133.