Berry v. Pennsylvania Railroad Company

• Citation: 48 N.J.L. 141,4 A. 303
• Decision Date: 15 March 1886
• Court: New Jersey Supreme Court
• Parties: THOMAS BERRY v. THE PENNSYLVANIA RAILROAD COMPANY

4 A. 303

48 N.J.L. 141

BERRY

v. PENNSYLVANIA R. CO.¹

Court of Errors and Appeals of New Jersey.

May, 1886.

On error.

R. V. Lindabury, for plaintiff in error.

M. Beasly, Jr., for defendant in error.

PARKER, J.At the trial of this cause the plaintiff was nonsuited because, at the close of his evidence, the court was of opinion that contributory negligence had been proved.The accident occurred in the forenoon of the second day of October, 1883, at a crossing in the city of Elizabeth.It was a rainy morning.The train which caused the injury complained of was running at a rapid rate of speed.There were numerous obstructions to the view near the track of defendant's railroad.The foliage on the trees was, at the time, very dense.The crossing was a dangerous one.A flag-man had been stationed there by the defendant.The plaintiff had a right to cross the railroad at that place if, in so doing, he exercised care to avoid collision with trains of the company.By law the plaintiff was charged with the duty of looking and listening before he attempted to cross.He was also charged with the duty of observing and giving heed to signals of the flag-man, if any were made in time to avoid accident.If he failed in these duties, or either of them, and by such failure contributed to the accident in any degree, he should have been nonsuited; for, although contributory negligence is matter of defense, yet if it clearly appears at the close of the plaintiff's evidence, the court should nonsuit.

Carelessness on the part of one crossing a railroad track may result, not only in injury to himself, but may also be the means of maiming or killing many travelers, and therefore the courts must hold the law strictly against him who is proved to have been careless.Is there such proof in this case? is the question.The plaintiff swears that, before he attempted to cross the railroad, he stopped his horse nine or ten feet from the track, looked both ways, and listened, but neither saw nor heard a train approaching.He was seated in the front part of the wagon, with the front curtains up.He also says that when he looked he saw as far on the track as the obstructions to the view would permit, but did not see any train approaching, nor hear the sound of bells or whistle.There is no evidence to show that these statutory signals were given.

The plaintiff had frequently passed over that crossing, and knew that a flag-man was habitually stationed there.He had a right to presume that, if a train was about to pass, the flag-man would be at the crossing, giving the customary signals of danger.The plaintiff swears that, before he attempted to go over the track, he had full view of the crossing; that he looked to see if the flag-man was in sight; that, not seeing a flag-man, he started to drive across the railroad; that when his horse had gotten on the first main track he for the first time saw the flag-man running towards him with an umbrella raised in one hand, and a flag not unfurled in the other; that the flag-man did not wave the flag, but ran up to the horse and struck, or motioned to strike, his head with the umbrella or flag, which action, he says, stopped or checked the horse; that at this juncture he for the first time saw the locomotive of an approaching train within a few feet of him; and that he whipped the horse to get out of the way of the train, but was so delayed by the action of the flag-man, before stated, that he could not prevent the collision.The locomotive struck the hind wheel of the wagon, by means of which the plaintiff was thrown out and injured.The plaintiff also swears that when he first saw the flag-man he was in such a position as to make it impossible to turn or back the horse so as to escape.The testimony of the other witnesses who were present at the time of the accident fully corroborates the statements of the plaintiff as to all material facts.James Stiles says he saw the flag-man running from near the flag-house, and at that time the horse and wagon were on the track.The flag-man had something in his hand, not unfurled, with which he struck or made a pass at the head of the horse, which checked him; and, as the flag-man stopped the horse, the engine struck the hind part of the wagon.Alexander Dick, another witness, says that he saw the flag-man in the act of approaching plaintiff, with an umbrella raised in one hand, and a flag in the other, and at that time the feet of the horse were on the track; that the flag-man made passes at the horse, which caused him to delay.This witness also says that he had a full view of the crossing, and did not see the flag-man there until he saw him run...