Merkle v. N.Y., L. E. & W. R. Co.

• Decision Date: 31 March 1887
• Citation: 9 A. 680,49 N.J.L. 473
• Court: New Jersey Supreme Court
• Parties: MERKLE, Adm'x, v. NEW YORK, L. E. & W. R. CO. SCHWINGE v. SAME.

9 A. 680

49 N.J.L. 473

MERKLE, Adm'x,

v. NEW YORK, L. E. & W. R. CO.

SCHWINGE

v. SAME.

Court of Errors and Appeals of New Jersey.

March Term, 1887.

In error to the supreme court.

Collins & Corbin, for plaintiffs in error.

Cortlandt & Wayne Parker, for defendant in error.

RUNYON, Ch. One of these suits was brought by John Schwinge to recover damages for the destruction of his property, a wagon and contents, by a collision with a train running upon the company's railroad, and the other by the administratrix of the person who drove the wagon for Schwinge at the time of the collision, and who was killed therein, for damages for such killing. The causes, with another for the damages for the killing, in the same accident, of a lad who was in the wagon at the time, and which cause went to a verdict, were all tried together. At the trial, at the close of the plaintiffs' principal testimony, the plaintiffs in the cases under consideration were nonsuited upon the ground that, according to the evidence, the driver of the wagon was guilty of contributory negligence. To reverse the judgment of nonsuit in those cases, the writs of error were brought. The driver of the wagon stopped to deliver goods at a store distant about 56 feet from the railroad track. After finishing that business he drove on (the horses upon a slow walk) towards and upon the railroad track, and he did not stop until the collision took place. After leaving the store, he could not see the approaching train until he came within six or eight feet of the railroad track. The wagon was a closed one, with a high tail-board which could be opened and shut, and it had curtains with an opening in them on the side where the driver sat. The curtain at that place was up at the time of the accident. In the wagon were 74 or 75 boxes, in which were about 1,800 loose beer bottles. The boxes were in layers, one layer being upon the floor of the wagon, and the others piled upon it. As the wagon went along, the bottles rattled with its motion. The noise which they made probably prevented the driver from hearing the sound of the approaching train.

Inasmuch as he could not protect himself, if there was danger, by the use of his eyes, it was incumbent upon him, in the exercise of ordinary prudence, to make use of his sense of hearing. He must have known that the rattling of the bottles behind him in the wagon might and probably would prevent him from hearing the noise of an approaching train. He could have...