The Central Railroad Company of New Jersey v. Smalley

• Court: New Jersey Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: The Central Railroad Company of New Jersey v. Smalley, 39 A. 695, 61 N.J.L. 277 (N.J. 1897)
• Decision Date: 15 November 1897
• Parties: THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, PLAINTIFF IN ERROR, v. JACOB S. SMALLEY, DEFENDANT IN ERROR

39 A. 695

61 N.J.L. 277

CENTRAL R CO. OF NEW JERSEY

v. SMALLEY.

Court of Errors and Appeals of New Jersey.

March 1, 1898.

(Syllabus by the Court.)

Error to supreme court.

Action by Jacob S. Smalley against the Central Railroad Company of New Jersey. Plaintiff had judgment, and defendant brings error. Reversed.

A. A. Clark, for plaintiff in error.

A. H. Strong, for defendant in error.

ADAMS. J. This writ of error brings up a judgment rendered in the supreme court upon a verdict for the plaintiff in the Somerset circuit. It is necessary to notice only the assignment of error that is directed against the refusal to nonsuit the plaintiff for contributory negligence. The evidence on behalf of the plaintiff presented this case: On the 11th day of January, 1893, at a few minutes past noon, the plaintiff was driving a one-horse sleigh, with bells, in a northerly direction, along Vosseller avenue, in Bound Brook, towards a crossing of the Central Railroad, which was guarded neither by gates nor by a flagman. On the west side of the avenue there was a building, and a bank of earth, with a fence and bushes upon it, which cut off the plaintiff's view of trains in that direction. A coal train in plain sight was moving west along the north track, towards the crossing. As the plaintiff reached the crossing, and drove upon the south track, which he did without stopping, the caboose of the coal train was just clearing the highway, and was distant from him only a few feet. As the horse came upon the south track, the engine of an east-bound passenger train struck and killed him, crushed the sleigh, and seriously injured the plaintiff. Several witnesses testified, negatively, on behalf of the plaintiff, that they did not hear any signal by bell or whistle from the engine of the east-bound train. The plaintiff himself testified that, by reason of permanent obstructions, he could not see the east-bound train until his horse was on the track. The evidence of Harvey Smalley and John C. Morris was to the same effect. The plaintiff further testified that he did not hear the east-bound train, and that he heard no bell rung or whistle blown. There was no express evidence to show how much noise the coal train made, or, indeed, that it made any noise; nor, under the circumstances, was such evidence necessary. The thing spoke for itself. The court will not ignore jommon experience. There is no reason to think that the physical conditions were exceptional, or that the phenomenon of an inaudible coal train was a feature of the situation. The conclusion is inevitable that this moving body was accompanied by the usual roar and rumble, which must have greatly hindered a person in its immediate vicinity from distinguishing other sounds.

The duty of a person who is about to cross a railroad track is to be prudent, to look and to listen, and to do the things that will make looking and listening reasonably effective. If the vision or hearing of such a rerson is limited by permanent obstructions or disturbances, he should for that reason be cautious. If his vision or hearing is limited by transient obstructions or disturbances, under circumstances which oblige him to rely on the sense...