Cantrell v. Erie R. Co.

• Decision Date: 14 July 1899
• Parties: CANTRELL v. ERIE R. CO.
• Court: New Jersey Supreme Court

43 A. 881

64 N.J.L. 277

CANTRELL

v. ERIE R. CO.

Court of Errors and Appeals of New Jersey.

July 14, 1899.

(Syllabus by the Court.)

Error to circuit court, Essex county.

Action by David S. Cantrell against the Erie Railroad Company. Judgment for defendant. Plaintiff brings error. Affirmed.

Harry E. Richards, for plaintiff in error.

Cortlandt Parker, for defendant in error.

DIXON, J. Between 9 and 10 o'clock p. m. of January 23, 1898, the plaintiff, on foot, was about to cross the single-track railroad of the defendant in Belleville, N. J. The track lies north and south, and the plaintiff was walking in an easterly direction. As he approached the track, and reached a point 35 or 40 feet from it, he stopped, and looked along the track towards the north, where his view was unobstructed for 1,600 feet, and, seeing no train, he proceeded to cross the track diagonally, looking only towards the south, where his view of the track was unobstructed for 900 feet. As he reached the further rail, he was struck by a train coming from the north, and thus received the injury because of which he brought this suit. The night was clear, with a strong westerly wind, and there were no distracting noises or lights. The plaintiff was familiar with the crossing, and knew that no flagman was kept there in the evening. Prom the point where he stopped to the point of collision the track was continuously open to view in the northerly and southerly directions for the distances mentioned. In describing his conduct while traversing this space, the plaintiff testified that he walked at about an ordinary gait; that he did not look up the track (i. e. towards the north) again after stopping; that he did not hear any sound of an approaching train; that his hearing was good, but he was not listening, or paying any particular attention to it; and that he did not become conscious of a train being near until it hit him. This testimony contains unqualified admission of failure to perform the duty of looking and listening, and, under the circumstances, discloses unmistakable evidence that such failure constituted contributory negligence. If, when the plaintiff looked towards the north, the train was not upon the visible stretch of 1,600 feet, or was so far away that an attentive look would not perceive it, then it must have traveled at a very high rate of speed to reach the point of collision when the plaintiff did, and at such a speed the rumble of the train would surely have been...