Baer v. Lehigh & H. R. Ry. Co.

• Decision Date: 17 March 1919
• Citation: 106 A. 421
• Court: New Jersey Supreme Court
• Parties: BAER v. LEHIGH & H. R. RY. CO.

106 A. 421

BAER

v. LEHIGH & H. R. RY. CO.

Supreme Court of New Jersey.

March 17, 1919.

Appeal from Court of Common Pleas, Warren County.

Action by Frank M. Baer against the Lehigh & Hudson River Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued June term, 1918, before PARKER and MINTURN, JJ.

George M. Shipman, of Belvidere, and Gilbert Collins, of Jersey City, for appellant.

Egbert Rosccrans, of Blairstown, for respondent.

MINTURN, J. The judgment appealed from was entered on the verdict of a jury in favor of plaintiff, upon a cause of action in which the proof was that plaintiff, a garage keeper at Belvidere, while about to cross defendant's tracks in that town, in his automobile, upon a stormy night, with passengers who had hired him to take them to visit a sick relative, was struck by defendant's engine, the collision resulting in overturning the automobile and pinning its occupants beneath it.

The situation presented by the plaintiff at the time was that as he approached the crossing he stopped his car about 20 feet away from the track, where he saw the engine with a headlight standing about 20 feet from the public crossing. There was no bell of any kind or whistle sounded, although there was at the point a crossing bell apparently inactive, and there was no statutory sign, "Out of order," posted to indicate the presence of a bell. Plaintiff, having assured himself of the stationary posture of the engine and of the apparent absence of indicia of danger, proceeded to cross the tracks. When the front wheels of the auto almost reached the track upon which the engine had been standing, the latter, without any signal of its intention, began to move in plaintiff's direction, and, before he could avoid it, struck his machine and caused the damage complained of, consisting of serious damage to the automobile and serious bodily injuries to the plaintiff himself.

The questions involved are the alleged negligence of the defendant, and the alleged contributory negligence of plaintiff, superadded to which are alleged procedural errors in the charge of the court.

It is quite apparent that, when plaintiff stopped 20 feet from the crossing to view the situation, he exereised that degree of reasonable care imposed upon him by law. Having satisfied himself that no danger was apparent from the general appearance of the situation, hearing no bell at the crossing and no indication by bell or otherwise of the intention of the engine, 20 feet away from the crossing, to change its situs, and receiving no warning by crossing, by bell, or otherwise that danger was imminent, the inquiry resolved itself into a question of fact for the jury whether, under all the circumstances, he exercised the care and caution in then crossing which the law standardizes as that commensurate with the care exercised by the ordinary prudent man.

At common law as evidenced by our adjudications, and devoid entirely of the superadded legislative protective requirement of the crossing act (P. L. 1909, p. 137), the question of negligence and contributory negligence thus presented were for the jury. Carmany v. W. J. & S. R. R. Co., 78 N. J. Law, 552, 74 Atl. 656; Quinn v. Same, 78 N. J. Law, 539, 74 Atl. 456; Napodensky v. Same, 85 N. J. Law, 336, 88 Atl. 1033; Fernetti v. Same, 87 N. J. Law, 268, 93 Atl. 576.

"Negligence," as was said in the Napodensky Case, "becomes" in such circumstances "a relative term, incapable of exact determination, except upon consideration, not only of the facts, but of all the circumstances, and in view of the entire environment in which the actor is placed."

The "Crossing Act" of 1909 operated as an additional makeweight in the balance, for under its provisions the Court of Errors and Appeals has held that the plaintiff was absolved from stopping, looking, and listening before passing over the railroad crossing, "even though the electric bell placed to warn travelers of the approach of a train was out of order." Fernetti v. W. J. R. R. Co., supra.

In any aspect of the situation, therefore, the case was properly sent to the jury.

Rut the contention is that plaintiff's contributory negligence was particularly emphasized, after he had seen the engine moving and assumed the risk of crossing with this danger clearly in view. This contention involved the jury's acceptance of the facts as related by defendant's witnesses.

Whether the engine was moving before the plaintiff attempted to cross; whether the whistle was blowing and the bells ringing; and whether plaintiff saw or by reasonable observation could have seen the true situation, with the snow beating against the wind-shield of his machine; or whether a proper degree of prudence would...