Smith v. Erie R. Co.

• Decision Date: 16 June 1902
• Citation: 67 N.J.L. 636,52 A. 634
• Parties: SMITH v. ERIE R. CO.
• Court: New Jersey Supreme Court

52 A. 634

67 N.J.L. 636

SMITH

v. ERIE R. CO.

Court of Errors and Appeals of New Jersey.

June 16, 1902.

(Syllabus by the Court)

Error to supreme court.

Action by Charles R. Smith against the Erie Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Cortlandt Parker and Cortlandt Parker, Jr., for plaintiff in error.

W. Bradford Smith and Robert H. McCarter, for defendant in error.

PITNEY, J. At the time of the occurrence which gave rise to this action, plaintiff was in the employ of the defendant in the capacity of baggage master and acting brakeman, and in the performance of his duties was traveling upon one of defendant's passenger ears over the Greenwood Lake Branch of its railroad. This car, together with a locomotive and tender, made up the train. The occurrence took place on the evening of Saturday, January 14, 1899, shortly after 7 o'clock. The train was running at some speed down a grade of about 60 feet to the mile, when, in rounding a curve, the passenger car became derailed, and, after bumping for some distance over the cross-ties, broke away from the tender, and was thrown down a steep embankment and demolished. The plaintiff sustained serious personal injuries, to recover damages for which he brought this action. The verdict and judgment in the court below having gone in his favor, the defendant now asks for a reversal because of alleged errors committed by the trial judge.

Plaintiff's insistment at the trial was that the derailment was occasioned by the nonrepair of the track. Evidence was introduced tending to show that the inspection and repairs of this part of the railroad were customarily done by a section gang of which one Duffy was foreman, and Sloat and two others were members; that during this particular week the section gang worked only on the alternate days; that at least as early as the afternoon of Friday, the day before the accident, a noticeable depression, called by the witnesses a "low joint" or "low spot" was found in the outer rail of the track at or near the curve in question; that this depression was observable by a person walking the track, and was sufficient to cause a decided lurch in a car passing over it; that on Friday afternoon Sloat reported this low joint to Duffy, yet the section gang was laid off duty from Friday night until Monday morning. Duffy, the track foreman, was called as a witness by the plaintiff, and testified that he was at work on Saturday, the 14th, but that his men were not, they having been laid off by him on the orders of Mr. Lynch, the supervisor of that division; that none of the trackmen were on duty on the 14th except Duffy himself; and that he walked over the section twice that day, but did nothing towards the repair of the low point in question; it being conceded that he could not repair it without help.

The plaintiff also produced the printed book of rules of defendant company, from which he introduced in evidence, without objection, the following rules:

"Supervisors. The supervisor has charge of the repairmen and other laborers employed on his subdivision, and must see that they perform their duties properly, and discipline them for neglect of duty. It is the supervisor's duty to keep the track, roadbed, bridges, culverts, buildings, and other property of the company on his subdivision in repair. He must pass over his subdivision daily; observe the condition of the track and bridges; see that the proper slopes and ditches are preserved, * * * that ties are of a standard size, evenly spaced, and properly tamped, and that the rails are in proper surface and securely fastened; * * * and do everything necessary to secure the safety of the road."

"Track Foremen. Track foremen report to, and receive their instructions from, the supervisor. They have charge of repairs on their respective sections, and are responsible for the proper inspection and safety of the tracks, bridges, and culverts. They must see that the track is in good line and surface, and properly spiked; that it is in true and uniform gauge; that the cross-ties are properly spaced, lined, and tamped; that the roadbed is in good order," etc.

Upon this evidence, and other to the same effect the plaintiff claimed that the proximate cause of the accident was the bad condition of the track; that the defect was such that reasonable vigilance and proper inspection would have discovered It, and reasonable care required its reparation; and that in fact it was discovered by the trackman in ample time to enable them to mend it before the accident, so that there was negligence of the trackman, for which the defendant was responsible to the plaintiff. Defendant's insistment was that the low spot in the track was not the cause of the derailment of the car, and that the disaster was the result of the reckless speed of the train, for which the locomotive engineer, a fellow servant of the plaintiff, was responsible. With respect to the speed of the train the testimony was quite variant. There was evidence from which the jury would have been at liberty to believe that it was not exceeding 20 miles an hour, and other evidence from which they might believe its speed was far in excess of 30 miles per hour. It was claimed by the defendant that the low spot was 60 feet or more above the point where the wheels of the passenger car left the track; it being argued that this distance, of itself, demonstrated that the low spot did not cause the derailment. It was further insisted that in a derailment resulting from such a low spot the wheels would jump over the outer rail whereas in this case several lengths of the outer rail rolled over under pressure of the wheels, thereby causing a spreading of the track, and permitting the wheels to settle down upon the cross-ties. As corroborating the defendant's theory, and negativing the theory which attributed the derailment to the low joint, it was pointed out that the locomotive remained on the track, and that the tender remained attached to the locomotive, although the rear wheels of the tender left the track. It is also claimed that after the passenger car became derailed it remained attached to the tender, and that its wheels bumped along the cross-ties for a distance of over 200 feet before the car broke from the tender and pitched down the bank. From all this it is argued that the occurrence resulted not from the car leaving the track by reason of roughness, unevenness, or any low joint, but by the locomotive and cars remaining on the track, clinging to it and destroying it. But the evidence tends to show that the low joint indicated that the track was being heaved by the frost, and so it cannot be said to be a necessary conclusion that the weakness of the track was confined to the immediate vicinity of the low joint Nor can it be said that a derailment which occurs by the overturning of the rails, caused by the weight of a train consisting of a locomotive, a tender, and a single car driven at a speed less than that which would cause them to jump the track, necessarily excludes the notion that the rails spread by reason of the nonrepair of the tracks.

There were motions for nonsuit and for directions of a verdict for the defendant. The refusal of these motions raises the questions on which the principal stress was laid in the argument before this court. The motions were based in part on the ground "that the accident was due to the negligence of a fellow servant of the plaintiff." As we have already seen, there was evidence from which the jury had a right to infer that the occurrence was due to negligent nonrepair of the track, and not to excessive speed of the train. Therefore the question is raised whether the employes whose duty it was to inspect and repair the track were fellow servants of the plaintiff, engaged in a common employment with him, within the meaning of the rule that absolves the master from liability to a servant...