Barcolini v. Atl. City & S. R. Co.
| Decision Date | 13 November 1911 |
| Citation | 82 N.J.L. 107,81 A. 494 |
| Parties | BARCOLINI v. ATLANTIC CITY & S. R. CO. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Atlantic County.
Action by Frank Barcolini, by his next friend, against the Atlantic City & Shore Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.
Argued June term, 1911, before GUMMERE, C. J., and PARKER and VOORHEES, JJ.
Thompson & Smathers, for plaintiff in error.
Garrison & Voorhees and Wescott & Wescott, for defendant in error.
The plaintiff, a child 21 months old, strayed upon the private right of way of the defendant company, incorporated under the general railroad act of 1903 (P. L. 1903, p. 645), at a place not a public crossing, and was struck by defendant's car, resulting in the loss of one of his legs. Judgment was recovered by the plaintiff for $2,500 in the Atlantic circuit court, to review which this writ of error has been sued out. A motion to direct a verdict for the defendant was refused, and error has been assigned thereon.
Neither in the declaration was there a charge that the injury was willfully caused, nor was there evidence offered to that effect. Throughout the plaintiff argued that the defendant's servant in charge of the car failed to use due care after he had seen the child. The motorman's testimony was uncontradicted, and showed that as soon as the child came in sight he used every effort to stop the car, but without success.
The defense was rested upon section 55 of the general railroad law (P. L. 1903, p. 673, § 55), which reads as follows: "It shall not be lawful for any person other than those connected with or employed upon the railroad to walk along the tracks of any railroad, except when the same shall be laid upon a public highway, if any person shall be injured by an engine or car while walking, standing or playing on any railroad, or by jumping on or off a car while in motion, such person shall be deemed to have contributed to the injury sustained, and shall not recover therefor any damages from the company owning or operating said railroad: Provided, that this section shall not apply to the crossing of a railroad by any person at any lawful public or private crossing."
This statute is a bar to recovery by any person who walks, stands, or plays upon a railroad. It in terms precludes any recovery for damages due to injuries received under the conditions therein mentioned, and applies to all persons alike,...
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...Erie R. Co. v. Hilt, supra, however, in denying liability, relied on a lower court decision from New Jersey, Barcolini v. Atlantic City & S.R.R. Co., 82 N.J.L. 107, 81 A. 494 (Sup. Ct. 1911), which did not mention at all the legislative intent or underlying theory behind the railroad statut......
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Eden v. Conrail
...In such case N.J.S.A. 48:12-152 is not fatal to his action. We do not think that the statement in Barcolini v. Atlantic City & S. R. R. Co., 82 N.J.L. 107, 81 A. 494 (Sup.Ct.1911), ostensibly precluding recovery on the basis of the statute by "all persons alike, without distinction as to th......
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Field v. Fidelity Union Trust Co.
...full literal meaning by the Supreme Court of the State in the case of an infant younger than the plaintiff. Barcolini v. Atlantic City & Shore R. Co., 82 N.J.L. 107, 81 A. 494." The court added: "In view of the importance of that tribunal in New Jersey, although not the highest Court in the......
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Egan v. Erie R. Co., A--79
...behalf of infants to recover for injuries resulting from being struck by engines or railroad cars. In Barcolini v. Atlantic City & S.R. Co., 82 N.J.L. 107, 81 A. 494, 495 (Sup.Ct.1911), a child 21 months old strayed upon the tracks of the defendant railroad company and was struck by the def......