Bittle v. Camden & A. R. Co.

• Decision Date: 18 January 1894
• Citation: 55 N.J.L. 615,28 A. 305
• Parties: BITTLE v. CAMDEN & A. R. CO.
• Court: New Jersey Supreme Court

28 A. 305

55 N.J.L. 615

BITTLE

v. CAMDEN & A. R. CO.

Court of Errors and Appeals of New Jersey.

Jan. 18, 1894.

(Syllabus by the Court.)

Error to supreme court.

Action for personal injuries by George W. Bittle against the Camden & Atlantic Railroad Company. There was judgment of nonsuit, and plaintiff brings error. Reversed.

John W. Wescott, for plaintiff in error.

Samuel H. Grey, for defendant in error.

LIPPINCOTT, J. The plaintiff below, who is also the plaintiff in error, sued the Camden & Atlantic Railroad Company to recover damages for personal injuries. The evidence on the part of the plaintiff shows that the accident out of which the injuries to the plaintiff arose occurred at Berlin, in the county of Camden, on March 23, 1891, about 5 o'clock in the afternoon. The plaintiff was, with a horse and wagon, engaged near the station at Berlin in unloading manure from a freight car of the defendants on a side track, and carting the same to a field not far away. On one of these trips he had loaded the wagon with manure, and had gotten off the car to drive away with his load to the field, when his attention was called to the fact of an approaching train on its way from Philadelphia to Atlantic City. The load on the wagon was nearly a ton in weight, and his horse was a young and spirited animal, but one which, to a considerable extent, by the evidence, had been accustomed to cars, and not ordinarily scared by them. He was, with his horse and wagon, about 75 yards away from the main tracks, near a siding upon which the freight cars holding the manure were standing, which siding ran nearly parallel with the main track on which the passenger train was approaching, and the roadway or other way upon which he was to drive with his load ran about parallel with these tracks, and in the same direction in which the train was going. The evidence shows that from this point he could not be seen by the engineer of an approaching train until the train came nearly or about opposite to the point where he was engaged. When the plaintiff's attention was called to an approaching train he took hold of the head of his horse, and was in the act of leading him along this roadway in which he was to go on his way to the field, and, while doing this, the train, which was somewhat behind time, came along and passed the station at a high rate of speed. The evidence on the part of the plaintiff does not show that the whistle blew, or the bell rang, before this point was reached. The evidence on the part of plaintiff, in substance, shows that as the train came to this point the engineer leaned out of the cab window, looked at the plaintiff holding his horse by the head, and then suddenly reached up and opened the valve, and blew a loud, shrill whistle, which so frightened the horse that it became entirely unmanageable, and the plaintiff, in his efforts to control it and prevent it from running away, was very seriously injured. The situation, by the evidence, appeared to be that there is an east-bound and a west-bound main track passing this station. The station faces the north, and the main tracks are in front of the station. Some short distance west of the station, Taunton avenue, a public highway, crosses the tracks at right angles. Immediately at the station, Jackson street, a public highway, crosses the tracks at right angles. About 100 yards east of the station there is also another crossing, called "Bishop's Crossing," also a highway; and still further east, nearly a half mile away, there is another crossing, called "Bishop's Road." Back of the station, on the south side, nearly 75 yards away, was the side track on which the car load of manure was standing, from which the defendant was loading his wagon. The side track was nearly parallel with the main track, deflecting a little to the south.

Upon the manner in which the whistle was blown, the plaintiff testifies that, when his wagon was loaded, he got off the car on the ground, and took the horse by the head, and started out away from the car to go to the field with his load, when his attention was called to the approaching train; that the Jackson street crossing is at the end of the station. This was the point opposite which the plaintiff was holding his horse; and he says: "I didn't think of them blowing the whistle there, because he was just beyond the crossing when he blowed the whistle, and he was looking with his head out of the cab window, and saw me, and he was smiling; and he just reached up and pulled his whistle, as I call it, 'wide open,' and the instant he done that she jumped." In another place in his evidence he says: "As soon as he saw me he reached right up and pulled the whistle," and that he never heard a shriller whistle in his life; that it was "a great deal louder than the usual whistle, and that it was so blown for two hundred yards;" and he further says, so far as his hearing was concerned, the whistle did not blow until the train was just beyond the crossing at Jackson street, opposite the point where the plaintiff was with his horse and wagon, and that the whistle has never since been blown at this point; and that, at the time it was blown in this manner, there was nothing on the track ahead to provoke such a whistle. It may be well said that there exists, if this evidence be true, a question whether there was not only negligence, but wantonness, on the part of the engineer in blowing this whistle as he did. Mr. Minnard, a witness, who lives opposite, and about 70 feet from, the station, a little beyond the easterly end, testifies that he was back of his house when he first heard the locomotive whistle, and that it sounded like a cattle call, and he supposed it was such, and started around the end of his house, when his wife met him, and told him that a horse was running away; that there was no way of measuring the sound of the whistle, but that it was a cattle call,—a loud, shrill whistle; that it was a great many times louder than the ordinary blow on approaching a station, or what they used to blow on approaching. He though somebody was on the track, and he started, supposing some one was on the track. The train was running at such rate of speed that, before he got around his house, it was a mile and a half away. He then describes the efforts of the plaintiff to control the horse, and that he would not have attempted its control for all the horses in the county. Harry Beckly, another witness, whose attention was called to the matter when the horse started, and while he had no occasion before that time to note the particulars, testifies that he saw a man have his head out of the cab window, and that he blew the whistle. He described it as being louder than usual, but otherwise took no note of it, except that the whistle did not blow till the engine was opposite the house of Mr. Minnard. Arthur W. Robinson, a witness, was unloading a freight car next to the car from which the plaintiff was unloading: described the whistle as "a long, loud blow:" that "it was an uncommonly loud blow,—loud and long;" and that he never heard a train blow in that place before. This witness states that he heard no whistle blow upon the approach of this train towards the station and crossings there. William Boardly, a witness, described the whistle as a "real loud blow;" that it was a quick, loud blow,— louder than he had heard before; that when the whistle "bursted out," as he describes it, he looked up, and saw a man hold of the whistle, with his head out of the cab window; that he was looking towards the plaintiff, and that he looked as if he was laughing. Harry Bittle swears that the whistle has not blown at this place since. There is much other evidence on the part of the plaintiff as to the situation of the crossings,—the number of them, and the distance apart,— the location of the main tracks, and the side track upon which the freight car stood. There is some evidence to show that the engineer, on approaching this station, could not see the plaintiff in the position in which he was with his horse and wagon, but at the point where the witnesses identify this unusual blowing of the whistle there appears to have been no difficulty in this respect. The plaintiff, with his horse and wagon, was in plain view of the engineer, or other person in the cab, looking from the cab window. At the close of the evidence the defendant moved a nonsuit, which was granted on three grounds: First, that the blowing of this whistle at this place where it was blown was not an unlawful act of the defendant, in view of statutory authority in this respect, and that the company was authorized to blow the whistle in this place; and, secondly, that there was nothing peculiar about the blowing of the whistle which made it unlawful, or constituted the manner of its blowing actionable negligence; that the only question raised upon this point was whether the whistle blown was the one ordinarily to be blown at this crossing or place, or whether it had an audibility which to one witness created the idea that there was something on the track ahead of the train, and whether the distinction between those two degrees of whistling constituted actionable negligence. The trial court held that these were questions of law, and to be determined by the court and they were determined in favor of the defendant. Besides these two points, the further finding of the court was that, even if the engineer was negligent, still there existed contributory negligence on the part of the plaintiff; that, if there was negligence on the part of the engineer, still that negligence was shared by the plaintiff, in that the engineer saw all that could be seen, and saw nothing more than the plaintiff knew himself; or, in other words, he saw a man who thought he had his horse under management, leading the horse in a manner which ordinarily does give a man such control. So that if there was a mistake in judgment—if there was...