Albanese v. Cent. R. Co. of N.J.

• Decision Date: 29 February 1904
• Citation: 70 N.J.L. 241,57 A. 447
• Parties: ALBANESE v. CENTRAL R. CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

57 A. 447

70 N.J.L. 241

ALBANESE

v. CENTRAL R. CO. OF NEW JERSEY.

Court of Errors and Appeals of New Jersey.

Feb. 29, 1904.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Florio Albanese against the Central Railroad Company of New Jersey. Judgment for defendant, and plaintiff brings error. Reversed.

James M. Trimble for plaintiff in error.

George Holmes, for defendant in error.

DIXON, J. The plaintiff, the father of Agostino Albanese, and the administrator of his son's estate, brought suit in the Supreme Court to recover compensation for the pecuniary loss sustained by himself, as next of kin, in consequence of his son's death. The circumstances in which the son was killed appear to have been as follows: In September, 1901, the son, being then about 17 years of age, was employed by a contractor engaged in elevating the tracks of the defendant's railroad in the city of Newark. In the prosecution of this work, a pile of sand about 30 feet long and 5 feet high had been deposited beside the east-bound track of the railroad, about 800 feet east of the Broad Street Station; and Agostino, when he met his death, was at work between the rails, shoveling away some of this sand, which had slipped down upon the track. While thus engaged stooping with his back toward the Broad Street Station, a train coming from that station, without warning by bell or whistle, struck and killed him. At the trial of the cause in the Essex circuit, the plaintiff produced no evidence that there had been any custom on the part of trainmen to give signals to the men working on or near the tracks, and one of the workmen examined by the plaintiff, being asked on cross-examination whether any rules or signals or instructions were given to the men about the approach of trains, answered, "No; no one. Every one looked out for himself."

At the close of the plaintiff's evidence a nonsuit was ordered on the ground that Agostino must be held to have assumed the risk of working at or near the track without any warning by bell or whistle of approaching trains, and that his failure to get out of the way must be charged, in part, to his own negligence. We think this order was erroneous.

That it was the duty of the defendant, having undertaken to elevate its tracks while using them for the passage of trains, to take reasonable care for the safety of workmen who in the prosecution of the work might properly be on or near the tracks, was settled in Delaware, L. & W. R. Co. v....