81 N.J.L. 95 | N.J. | 1911
This suit is brought to recover damages from the defendant company for injuries sustained by the plaintiff to her person and property by reason of the negligence of the defendant in failing to keep a certain highway grade crossing over its tracks in proper repair.
The declaration avers that the tracks of the defendant company cross a certain public highway in the county of Warren; that it then and there became the duty of the defendant to use due care to keep sound, safe and indefoctive planks or other safeguards between and by the side of the rails composing the track, so that the dirt between and by the side of the track would wear evenly and remain level and even so that all persons might go, return, pass and repass over and along said public highway and cross the track, free from hurts, &c.; that the defendant, disregarding its duty, left this railroad track and crossing in an unsound, unsafe and defective condition, without any planking or other safeguards between and at the side of the rails of the track, and with a deep hole or depression between the rails of the railroad track, and maintained its tracks and appliances in such an unsafe, defective and dangerous condition for a long space of time, to wit, three years before the happening of the grievances and injuries thereinafter mentioned. It then sets out the happening of the accident and alleges that it was due to the wheels of the wagon in which the plaintiff was driving being plunged or falling into a deep hole or depression between the rails of the track.
The defendant demurs, and the first ground of demurrer argued is that the declaration does not state a sufficient cause of action, because it fails to allege sufficient facts and circumstances to show that the action is brought under the “Act concerning railroads.” Pamph. L. 1903, p. 645. There is no merit in this contention. The declaration alleges the dangerous condition of the crossing, and an accident to the plaintiff happening by reason thereof. It is not necessary that the declaration shall expressly allege that the accident occurred by reason of the failure of the defendant to perform the duty which it owed to the plaintiff under section 26 of the “Act con
It is further contended that the declaration is insufficient because it does not contain an allegation that the railroad company had notice of the fact that the crossing was defective or out of repair. We think the declaration sufficient in this respect for two reasons—first, because it avers that the condition existed for three years prior to the accident. That averment raises a presumption of notice to the defendant; secondly, such averment is not essential. As was said in Bonn v. Erie Railroad Co., 37 Vroom 428, 431, “as against a railroad company charged by law with the duty to the public imposed on the defendant it was sufficient, prima facie, to prove the defect. Exculpation was for the defendant.” Of course, it is not necessary to aver in the declaration anything which the plaintiff is not required to prove in order to make out a ease.
The plaintiff is entitled to judgment on the demurrer.
