9 A. 680 (N.J.L. 1887), Merkle v. The New York, Lake Erie and Western Railroad Company

Citation:9 A. 680, 49 N.J.L. 473
Opinion Judge:THE CHANCELLOR
Party Name:SUSANNA MERKLE, ADMINISTRATRIX, PLAINTIFF IN ERROR, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, DEFENDANT IN ERROR. JOHN SCHWINGE, PLAINTIFF IN ERROR, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, DEFENDANT IN ERROR
Attorney:For the plaintiffs in error, Collins & Corbin. For the defendant in error, Cortlandt & R. Wayne Parker.
Judge Panel:For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, DEPUE, KNAPP, MAGIE, PARKER, REED, SCUDDER, CLEMENT, COLE, MCGREGOR, PATERSON, WHITAKER. For reversal -- None. For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, DEPUE, KNAPP, MAGIE, PARKER, REED, SCUDDER, CLEMENT, COLE, MCGREGOR, PATERSON, WHITAKER....
Case Date:March 15, 1887
Court:Supreme Court of New Jersey
 
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Page 680

9 A. 680 (N.J.L. 1887)

49 N.J.L. 473

SUSANNA MERKLE, ADMINISTRATRIX, PLAINTIFF IN ERROR,

v.

THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, DEFENDANT IN ERROR.

JOHN SCHWINGE, PLAINTIFF IN ERROR,

v.

THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, DEFENDANT IN ERROR

Court of Errors and Appeals of New Jersey

March 15, 1887

Affirmed.

For the plaintiffs in error, Collins & Corbin.

For the defendant in error, Cortlandt & R. Wayne Parker.

For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, DEPUE, KNAPP, MAGIE, PARKER, REED, SCUDDER, CLEMENT, COLE, MCGREGOR, PATERSON, WHITAKER. For reversal -- None.

OPINION

THE CHANCELLOR.

In error to the Supreme Court.

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 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 non-suited upon the ground that according to the evidence the driver of the wagon was guilty of contributory negligence. To reverse the judgment of non-suit in those cases the writs [49 N.J.L. 474] of error were brought. The driver of the wagon stopped to deliver goods at a store distant about fifty-six 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 on the side where the driver sat. The curtain at that place was up at the time of the accident. In the wagon were seventy-four or seventy-five boxes in which were about eighteen hundred loose beer-bottles. The boxes were in layers, one layer being upon the floor of the wagon...

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