52 A. 634 (N.J.L. 1902), Smith v. The Erie Railroad Co.

Citation:52 A. 634, 67 N.J.L. 636
Opinion Judge:PITNEY, J.
Party Name:CHARLES R. SMITH, DEFENDANT IN ERROR, v. THE ERIE RAILROAD COMPANY, PLAINTIFF IN ERROR
Attorney:For the plaintiff in error, Cortlandt Parker and Cortlandt Parker, Jr. For the defendant in error, W. Bradford Smith and Robert H. McCarter.
Judge Panel:For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, VAN SYCKEL, DIXON, GARRISON, COLLINS, FORT, GARRETSON, HENDRICKSON, PITNEY, BOGERT, ADAMS, VREDENBURGH, VROOM. 14. For reversal -- None.
Case Date:June 16, 1902
Court:Supreme Court of New Jersey
 
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Page 634

52 A. 634 (N.J.L. 1902)

67 N.J.L. 636

CHARLES R. SMITH, DEFENDANT IN ERROR,

v.

THE ERIE RAILROAD COMPANY, PLAINTIFF IN ERROR

Court of Errors and Appeals of New Jersey

June 16, 1902

Argued March 19, 1902.

On error to the Supreme Court.

For the plaintiff in error, Cortlandt Parker and Cortlandt Parker, Jr.

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

OPINION

Page 635

[67 N.J.L. 637] 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 cars 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 14th, 1899, shortly after seven o'clock. The train was running at some speed, down a grade of about sixty feet to the mile, when, in rounding a curve, the passenger [67 N.J.L. 638] 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 non-repair 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 [67 N.J.L. 639] 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 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," &c.

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...

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