Conkling v. Erie R. Co.

• Decision Date: 19 June 1899
• Citation: 43 A. 666,63 N.J.L. 338
• Parties: CONKLING v. ERIE R. CO.
• Court: New Jersey Supreme Court

43 A. 666

63 N.J.L. 338

CONKLING

v. ERIE R. CO.

Court of Errors and Appeals of New Jersey.

June 19, 1899.

(Syllabus by the Court.)

Error to supreme court.

Action by George E. Conkling against the Erie Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Corbin & Corbin, for plaintiff in error.

Francis Scott for defendant in error.

HENDRICKSON, J. The controversy in this case arises over the denial of a motion to nonsuit the plaintiff on the ground of contributory negligence. The suit was for injuries to his person and property by a collision of the defendant's railway train with the plaintiff's ice wagon, which he was engaged in driving over the Crooks avenue crossing in the suburbs of Paterson. The train was the midday express. It had left the station at Paterson, and was on its way to Jersey City, and was traveling at the speed of from 33 to 40 miles an hour. The direction of the railway at this point is nearly north and south, and is crossed by Crooks avenue at right angles, or nearly so, in an easterly direction. The physical conditions of the approach to the crossing from the west, whence the plaintiff was driving, were these: Crooks avenue has a width of 90 feet, and near the railway is skirted on the north side with a building, and with a row of trees reaching to the west side of Railroad avenue, which runs parallel with and along the railway from Crooks avenue northward. The width of Railroad avenue is 70 feet, and the distance from the west side of that avenue to the railroad track Is 100 feet. The view at this point from Crooks avenue to the south along the railroad was clear and unobstructed, but on the north a row of trees in full foliage, skirting the west side of Railroad avenue, obstructed the view from a wagon passing eastwardly along Crooks avenue until it reached a point 60 or 70 feet from the nearest rail. At a point 60 feet from the track the view was unobstructed for a distance of 1,300 feet northward along the track, and the distance of the view increased as the traveler approached the crossing, until at a distance of 15 feet from the track the view was for half a mile or over. The conditions affecting the plaintiff with relation to the collision which occurred were these: He was at the time a man 31 years of age, in good health, with normal powers of sight and hearing. He had become familiar with the crossing through 10 years of constant travel over it.

The duty which devolves upon a person using the highway, when about to cross the line of a steam railway, under circumstances like these, has been clearly defined and laid down by the courts of this state. It is, in brief, that he must recognize the superior right of the steam cars to the right of way, because of their mode of travel, and the great speed with which they are permitted and expected to propel their trains in order to answer the necessities of the public traffic. In order to subserve this right, and at the same time protect the lives of travelers upon the railway, as well as the persons using the highways, the law requires that the traveler upon such a highway, before he attempts to cross the railroad, shall take the care and precaution which ordinarily prudent men, knowing their rights and duties in that particular, would take before exposing themselves to such dangers. But what is the true standard of such care and precaution, as applied to the acts and conduct of persons about to enter upon a railroad crossing? This court has given answer to this question in Railroad Co. v. Righter, 42 N. J. Law, 180, in these words: "A primary rule of legal caution is that a person about to cross a railroad is bound to use his eyes and ears, to watch for signboards and signals, to listen for bell or whistle, and to guard against the approach of a train by looking each way before crossing." See, also, 3 Elliott, R. R. 1160. The rule as thus defined has since been approved and followed in this state, and is in accord with the great weight of authority elsewhere. And it is equally well settled that if a plaintiff has failed in this duty, and his negligent act has proximately contributed, in any degree, to the occurrence that has caused his injury, he cannot recover, no matter if it appear that the defendant was also negligent. Railroad Co. v. Matthews, 36 N. J. Law, 532. When this act of contributory negligence clearly appears in the plaintiff's testimony, it becomes the duty of the court to direct a nonsuit. Railroad Co. v. Righter, supra; Merkle v. Railroad Co., 49 N. J. Law, 473, 9 Atl. 680. Railroad Co. v. Leary, 56 N. J. Law, 705, 29 Atl. 678; 3 Elliott, R. R. 1163-1179. Did the plaintiff, by his neglect of duty in this case, thus contribute to the accident that caused his injury? And does this, fact so clearly appear as to have made it the duty of the trial judge to grant the motion to nonsuit? It must be said that there were conditions existing, within the control of the plaintiff, that accentuate the duty that should have required him, in this case, to look and listen with care before crossing. He was driving an ice wagon, with scales, ice tongs, and other utensils within, along a macadamized roadway, with his horses on a jog trot, causing considerable noise, which might interfere with his hearing the usual signals. His wagon was a covered one, with curtains down, and a slanting hood over the front, with a glass in the curtains on either side. Under such circumstances, the duty of the traveler on the highway does not stop with looking and listening, but he must exercise care to select a position from which an effective observation can be made, and he must also exercise care to make the act of looking and listening reasonably effective. Merkle v. Railroad Co., supra; Railroad Co. v Ewan, 55 N. J. Law, 574. 27 Atl. 1064; Railway Co. v. Block, 55 N. J. Law, 605, 27 Atl. 1067; Railroad Co. v. Smalley, 61 N. J. Law, 277, 279, 39 Atl. 695; 3 Elliott, R. R. 1166.

The plaintiff testified that when he got to the Erie Railroad he looked up the track, and saw nothing,—only Mr. Kinne's son standing by the depot,—and added: "I did not hear anything, or any bell, and I did not see anything; and just as I got on the track the locomotive came right down on me." He further testified, on cross-examination, that after he had passed the trees he did look up the track, and look down again, and that it was as he was bringing his eyes away from looking up the track that he saw Kinne. In this connection he also testified: "Q. Where were the horses then? A. When I looked, just about going on the rails. Q. When you were looking? A. They were about six feet from the rails. The reins were...