Bray v. W. Jersey & S. S. R. Co.

• Citation: 116 A. 171
• Parties: BRAY v. WEST JERSEY & S. S. R. CO. et al.
• Decision Date: 21 December 1921
• Court: United States State Supreme Court (New Jersey)

116 A. 171

BRAY

v. WEST JERSEY & S. S. R. CO. et al.

Supreme Court of New Jersey.

Dec. 21, 1921.

Appeal from Court of Common Pleas, Camden County.

Action by Walter S. Bray against the West Jersey & Seashore Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued June term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Bourgeois & Coulomb, of Atlantic City, for appellant West Jersey & S. S. R. Co.

Lefferts S. Hoffman, Leonard J. Tynan, and Joseph Coult, all of Newark, for appellant Public Service Ry. Co.

William C. French and Samuel T. French, both of Camden, for respondent.

PER CURIAM. The plaintiff, a physician, while driving along a public street in the city of Camden, in an automobile, In the nighttime, as he reached a point in the street where the tracks of the Public Service Railway Company cross the tracks of the West Jersey & Seashore Railroad Company, drove into a deep excavation, with the result that he sustained permanent injuries.

The specific charge of negligence laid against the defendants was failure on their part to use reasonable care to properly guard the excavation in order to protect the traveling public using the street at night against the danger which existed at that crossing, by displaying proper and adequate warning signals of the danger.

The plaintiff brought his action in the Camden county court of common pleas, which resulted in a verdict for the plaintiff and against both defendants, for the sum of $40,000. On defendants' rule to show cause, exceptions being reserved, why the verdict should not be set aside for the reason that the damages awarded were excessive, the court below gave the plaintiff the option of accepting $12,000 or the rule would be made absolute. The plaintiff acquiesced in a reduction of the verdict to the sum of $12,000, and judgment was entered thereon, from which judgment the defendants appeal.

The record shows six grounds of appeal, but in the brief of counsel of defendants they make this statement:

"The argument will be confined to grounds Nos. 2 and 3 relating to the refusal of the court to direct verdicts in favor of the defendants. Grounds Nos. 1, 4, 5 and 6 are abandoned."

Grounds Nos. 2 and 3 are based upon a denial by the court below of a motion for a direction of a verdict for defendants, the insistence being that there was a lack of proof that the defendants were guilty of any negligence, and even that, if there was not such failure of proof, the plaintiff himself was guilty of negligence contributing to his injury.

The defendants in causing the excavation to be made in the public highway created a place of danger to public travel, vehicular and on foot, and therefore the law cast upon them the duty to use...