This suit was brought against the New York and Long Branch Railroad Company, the Central Railroad Company of New Jersey, the New Jersey Southern Railway Company and the Pennsylvania Railroad Company, to recover damages for negligently causing the death of Paul Wolcott, the plaintiff’s intestate. A nonsuit was granted .in favor of the New Jersey Southern Railway Company at the close of the plaintiff’s case. A verdict was directed in favor of the Central Railroad Company of New Jersey, and the question of the liability of the New York and Long Branch Railroad Company and of the Pennsylvania Railroad Company was submitted to the jiuy, who returned a verdict in favor of the latter company as against the plaintiff and in favor of the plaintiff as against the New York and Long Branch Railroad Company. This rule was allowed to the Long Branch company, and the two questions which it presents for decision are whether the evidence will support the conclusion, reached by the jury, that the death of the plaintiff’s intestate was due to negligence of the Compaq, or of any of its employes; and, further, whether' the deceased was not guilty of contributory negligence.
On the first point the following facts are pertinent: At the crossing where the deceased was killed there are nine separate tracks, four of which are, tracks of the Long Branch company and the remaining five tracks of the Jersey Southern. These tracks are not all parallel, those of the Jersey Southern diverging at a considerable angle from those of the Long Branch road. Although these tracks are owned by two different companies, they are all under the management and control of the New York and Long Branch company. Approaching the tracks from the direction in which the deceased was driving, the Jersey Southern tracks are first reached; then a triangular piece of ground is encountered, tying between the two systems of tracks, and then the tracks of the New York and Long Branch road. The distance from the first track of the Southern road to the last track of the Long Branch road, measured
Whether or not a duty rested upon the Long Branch company to protect this crossing by a flagman or not is immaterial. It assumed that duty, and, having done so, was bound to perform it with duo care. Where the flagman stood.and whether he waved his lantern or not as a signal that a train was ap7 proaching were matters in dispute. If he stood on the southern edge of the highwa)'-, not in the wagonway at all, as some ’ of the witnesses say, and if he gave no signal with his lantern, as decedent’s widow testifies, it cannot certainly be said,, as matter of law, that he fully and carefully performed the duty which he had undertaken, of giving warning of the approaching train. It was for the jury to determine where he stood,
Other facts, in addition to those which have been recited, enter into the consideration of the question whether the deceased was guilty of contributory negligence. The conditions which existed in the neighborhood of the crossing, on the side from which the deceased approached it, show that there was a view down the tracks of the Long Branch road, in the direction from which the train was coming, at a point four hundred and seventy-five feet from the crossing; but that, as the distance decreased, the view was frequently interrupted by the presence of houses and other obstructions. The night was a dark one; and it does not appear that the deceased was familiar with the crossing. There were a number of electric and other lights in the neighborhood of the crossing, which illumined the surroundings more or less. The evidence is in favor of the conclusion that a bell was rung on the train, but decedent's wife says she did not hear it.
All of these facts, taken together, do not conclusively show contributory negligence on the part of the decedent. To what extent his view, in the direction of the approaching train, was impeded, before he reached the electric light plant, is unimportant ; for, up to that time, the train had not come in sight. This is shown by the testimony oUthe defendant's flagman, who testified that, after going upon the crossing, he was “watching the train to come down the Long Branch northbound track," and then said “and when I saw it appearing, coming down, I turned and I saw this wagon coming right opposite the electric light plant." After reaching this building his view down the track was intercepted by it until he had passed beyond it. Although the engine bell was ringing at that time, it cannot certainly be said that he heard it, for his ■widow swears that she did not, and her.opportunity for doing s.o was equally as good as his. After passing beyond the electric light building he almost immediately came to the first of the' Southern railway tracks. Assuming that he then saw
In our opinion the evidence in the case fairly supports the finding of the jury, both on the question of the negligence of the defendants and on that of the contributory negligence of the plaintiff’s intestate, and the rule'to show cause should be discharged.