Stryker v. Pennsylvania Railroad
4 N.J. Misc. 201
| N.J. | 1926
Per Curiam.

This was a suit brought under the Death act. The plaintiff’s intestate was killed while driving his automobile across the tracks of the railroad company at Sea Girt in the forenoon of October 24th, 1924, while on his way to the beach.

The trial resulted in a verdict in favor of the plaintiff, and the defendant on this rule attacks that verdict, principally upon the ground that the finding of the jury that plaintiff’s decedent was not guilty of contributory negligence was contrary to the clear preponderance of the evidence. This contention seems to us to be well founded. The undisputed testimony is that, as he reached the crossing, he stopped his automobile at a point about thirty-five feet from the tracks while a southbound train was passing; that when this train cleared the crossing he started on immediately, and, as he was passing over the tracks, was struck by a northbound train, a view of which was temporarily obstructed by the train which had already passed. In the case of Central *202Railroad Co. v. Smalley, 61 N. J. L. 277, the Court of Errors and Appeals, in dealing with a situation almost identical with that presented by the present ease, declared that “the duty of a person who is about to cross a railroad track is to be prudent—to look and to listen and to do the things that will make looking and listening reasonably effective; if his vision is limited by transient obstructions or disturbances, he should wait until it has again become efficient to warn him of- peril. To go on a railroad crossing in the way of a train, which can be. neither seen nor heard, but which would be either visible or audible except for some temporary hindrance to sight or hearing, is to be negligent.” This principle was reiterated by that court in the «later case of Swanson, Administratrix, v. Central Railroad Co., 63 N. J. L. 605, the court stating that “it is the duty of the traveler upon a highway before crossing a railroad to look up and down the tracks, and also listen for approaching train, is temporarily diminished or destroyed by obstructions or disturbances which are transient in their nature, reasonable prudence required him to wait until such obstructions or disturbances have disappeared and his senses have again become efficient to warn him of danger before attempting the crossing.” The cases of West Jersey Railroad Co. v. Ewan, 55 Id. 574, and Pennsylvania Railroad Co. v. Pfuelb, 60 Id. 278, are to the same effect.

The finding of the jury on the question of contributory negligence in the case now under consideration' cannot be justified without entirely disregarding the legal principle laid down in the cases referred to.

The rule to show cause will be made absolute.