Consol. Gas Co. of N.J. v. Brooks
| Decision Date | 10 November 1902 |
| Citation | 53 A. 296 |
| Parties | CONSOLIDATED GAS CO. OF NEW JERSEY v. BROOKS. |
| Court | New Jersey Supreme Court |
Error to circuit court, Monmouth county. Action by Catherine Brooks, as administratrix, against the Consolidated Gas Company of New Jersey. There was a judgment for plaintiff, and defendant brings error. Affirmed.
Argued June term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and GARRETSON, JJ.
E. A. S. Lewis, for plaintiff in error.
S. A. Patterson, for defendant in error.
The. plaintiff's decedent was a gardener in the employ of one Elias Asiel, at Long Branch. While engaged in painting a gutter on the edge of one of the balconies on the house of his employer, the decedent came in contact with an electric wire which ran up the side of the house some eight or ten inches from the corner of this balcony, and received a shock which instantly killed him.
But two errors are assigned: First, the refusal of the court to grant the defendant's motion to nonsuit the plaintiff; and, second, the refusal of the court to grant the defendant's motion to direct a verdict in its favor.
Both of defendant's motions wore rested on two grounds: First, that the case showed that the death of the plaintiff's decedent was partly due to his own negligence; and, second, that it failed to show that his death resulted from any neglect on the part of the defendant of any duty which it owed to him.
We find nothing in the case which would have justified the trial court in holding that the negligence of the deceased conclusively appeared. No one saw the accident, and there was no testimony to show how it occurred. The mere fact that while engaged in painting the gutter upon this balcony he came in contact with the electric wire of the defendant company is not, in itself, conclusive evidence of negligence on his part. Nor would the trial court have been justified in directing a verdict for the defendant upon the ground that there was no evidence from which a jury could conclude that it was neglectful of any duty which it owed the decedent; there was evidence from which such negligence could have been found.
Our conclusion is that both of the requests of the defendant were properly refused, and that the judgment below should be affirmed.
WOLCOTT v. NEW YORK & L. B. R. CO. et al.
RAILROAD CROSSING—ACCIDENT—NEGLIGENCE! —DUTY OF FLAGMAN—CONTRIBUTORY NEGLIGENCE—EVIDENCE—QUESTIONS FOR JURY.
1. Where there was a coniiict in the evidence as to whether a flagman stationed at a railroad crossing at night was in the middle of the road or on the south edge of it, and also whether he waved his lantern as a warning to the approaching traveler, the question of the flagman's negligence was for the jury.
2. Where a railroad company assumed the duty of protecting a crossing by a flagman, it was bound to do so with reasonable care, and the question whether the duty of placing a flagman there rested on it was immaterial.
3. Whether decedent, driving over a railway crossing where there were nine separate tracks, was guilty of contributory negligence in driving on after he saw the headlight of an approaching train when he was on the first track, was for the jury.
Action by Bloomfield I. Wolcott, administrator, against the New York & Long Branch Railroad Company and others. Plaintiff was nonsuited as to one of the defendants, and verdicts were rendered against him and in favor of other defendants, and there was a verdict in favor of plaintiff and against the New York & Long Branch Railroad Company. Rule to show cause. Discharged.
Argued June term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and GARRETSON, JJ.
R. V. Lindabury and John S. Applegate, for the rule. Edmund Wilson, contra.
This suit was brought against the New York & Long Branch Railroad Company, the Central Railroad Company of New Jersey, the New Jersey Southern Railway Company, and the Pennsylvania Railroad Company to recover damages for negligently causing the death of Paul Wolcott, the plaintiff's intestate. A nonsuit was granted in favor of the New Jersey Southern Railway Company at the close of the plaintiff's case. A verdict was directed in favor of the Central Railroad Company of New Jersey, and the question of the liability of the New York & Long Branch Railroad Company and of the Pennsylvania Railroad Company was submitted to the jury, who returned a verdict in favor of the latter company as against the plaintiff, and in favor of the plaintiff as against the New York & Long Branch Railroad Company. This rule was allowed to the Long Branch Company, and the two questions which it presents for decision are whether the evidence will support the conclusion reached by the jury that the death of the plaintiff's intestate was due to negligence of the company or of any of its employés, and, further, whether the deceased was not guilty of contributory negligence.
On the first point the following facts are pertinent: At the crossing where the deceased was killed there are nine separate tracks, four of which are tracks of the Long...
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