Blauvelt v. Erie R. Co.

• Decision Date: 27 February 1911
• Citation: 78 A. 1048,81 N.J.L. 142
• Parties: BLAUVELT v. ERIE R. CO.
• Court: New Jersey Supreme Court

78 A. 1048

81 N.J.L. 142

BLAUVELT

v. ERIE R. CO.

Supreme Court of New Jersey.

Feb. 27, 1911.

Syllabus by the Court.

Certiorari to Court of Common Pleas, Morris County.

Action by John Blauvelt against the Erie Railroad Company. Judgment for plaintiff, and defendant brings certiorari. Reversed.

Argued November term, 1910, before GARRISON, SWAYZE, and VOORHEES, JJ.

Joshua R. Salmon and Elmer King, for plaintiff.

Collins & Corbin, for prosecutor.

VOORHEES, J. This writ of certiorari has removed for review a judgment entered for the plaintiff on the verdict of a jury, in the court of common pleas, on appeal from the small cause court. The litigation was brought to recover damages for injuries to property received at a grade railway crossing.

The alleged negligence of the defendant was the failure to give the statutory signals by bell or whistle. The statutory requirements (P. L. 1903, p. 663, § 35) are in the alternative, either that the bell shall be rung or the whistle blown, not cumulative requiring both to be done. N. Y., etc., R. R. Co. v. Leaman, 54 N. J. Law, 202, 23 Atl. 691, 15 L. R. A. 426. If, therefore, the plaintiff failed to prove that both signals were omitted, he has failed in his proof. The proof that the crossing signal by whistle was given was the subject of the positive testimony of both engineer and fireman. The plaintiff's evidence is: "I did not. hear any bell or whistles. There was a very strong wind that morning from the west, that blew the sound away from me." And on cross-examination he repeated: "Yes; there was a strong wind blowing. Q. So that would confuse any sound? A. Yes; you could not hear any sound scarcely." This constitutes the whole testimony concerning the giving the statutory signals by whistle. The plaintiff's testimony in rebuttal refers alone to the warning whistle just before the collision, not to that prescribed by statute. Undoubtedly the condition of the wind described by the plaintiff made it unlikely that he could have board the whistle, bad it blown. There was therefore no conflict of evidence requiring the submission of that fact to the Jury. Eissing v. Erie, 73 N. J. Law, 343, 63 Atl. 856; Holmes v. P. R. R., 74 N. J. Law, 469, 66 Atl. 412; Weiss v. Central R. R., 76 N. J. Law, 348, 69 Atl. 1087; Howe v. Northern R. R., 78 N. J. Law, 683, 76 Atl. 979. The motion to direct a verdict for the defendant should have prevailed on this ground.

But, assuming that the defendant's negligence in the failure to give the statutory signals by bell or whistle was sufficiently made out to carry the case to the jury, yet we think the proof clearly exhibits the concurring negligence of the plaintiff but for which the accident would not have occurred. The plaintiff approached the crossing with the nature and surroundings of which he was familiar, in the daylight, driving a horse and buggy, in which he rode, with its top up and side curtains down. The horse was going at a slow walk of three miles per hour. While sitting in the buggy, he was unable to see on either...