Devoe v. N.Y., O. & W. Ry. Co.

• Decision Date: 26 June 1899
• Citation: 43 A. 899,63 N.J.L. 276
• Parties: DEVOE v. NEW YORK, O. & W. RY. CO.
• Court: New Jersey Supreme Court

43 A. 899

63 N.J.L. 276

DEVOE

v. NEW YORK, O. & W. RY. CO.

Court of Errors and Appeals of New Jersey.

June 26, 1899.

Error to supreme court.

Action by Helen M. Devoe, administratrix of Bertha L. Devoe, deceased, against the New York, Ontario & Western Railway Company. There was judgment for plaintiff, and defendant brings error. Reversed.

Helen M. Devoe, as administratrix of Bertha L. Devoe, deceased, brought suit against the New York, Ontario & Western Railway Company. The deceased, a child 9 years of age, was struck on the 22d day of September, 1897, by a train of the company, while she was crossing the company's railroad track near Schraalenburg, and so injured that she shortly afterwards died. This suit was brought under the statute to recover damages for causing the death of the deceased. At the trial the plaintiff recovered a verdict, on which judgment was entered, whereupon the defendant sued out this writ of error. The errors assigned were upon exceptions taken to the refusal of the trial court to nonsuit and the refusal of the court to direct a verdict for the defendant at the close of the case.

Vredenburgh & Garretson, for plaintiff in error.

John P. Stockton and Warren Dixon, for defendant in error.

DEPUE, J. The deceased, at the time she was struck, was crossing the track of the railroad at a place which was not a public highway. She was not using the place of crossing to go to the passenger station. She was on her way to school, intending to reach the street on which the school was situate by passing over the platform of the station. The situation and circumstances, as disclosed in the evidence, were these: The passenger station was on the south side of the railroad, extending out to a street called "Courtlandt Street" parallel with and some distance from the railroad. On the northerly side of the railroad there was a highway known as the "Milford Road," which adjoined the company's grounds, and which turned and crossed the railroad about 500 feet west of the station, and again about 1,000 feet east of the station. The company, years ago, erected a wire-gauze fence about five feet high on the line between its grounds and the Milford road, extending the entire distance between the two public crossings. On that side of the railroad there were a number of dwelling houses, occupied mainly by persons who had occasion to travel on the trains. In one of these houses the mother of the deceased resided. The proof was that about four years before this occurrence a stile, consisting of three steps on one side up to a platform, and three steps down on the other side, was placed in this wire fence for the purpose of enabling persons to get over the fence, and into the depot grounds. This stile was on a line with the easterly end of the station. It was placed there by third persons, at their own expense, for their own convenience in reaching the railway station, without the consent and notwithstanding the refusal of permission by the company. There was a ditch along the fence at the foot of the stile, and there was no visible or beaten track across the company's grounds, and no outlet to Courtlandt street, except over and along the platform of the station. On the morning in question the deceased left her mother's house to go to school. Instead of going to the public crossing where the Milford road passes over the railroad, she went to the stile, crossed over it, and on her way across the company's tracks, just before she reached the platform of the passenger station, she was struck by one of the company's trains. The rules of law which control in this case have been settled by the decisions of this court. In Phillips v. Library Co., 55 N. J. Law, 307, 27 Atl. 478, the propositions adjudged which apply to the facts of this case are: "First. Mere permission to pass over dangerous lands, or acquiescence in such passage for the benefit or convenience of the licensee, creates no duty on the part of the owner, except to refrain from acts willfully injurious. Second. But the owner or occupier of lands, who, by invitation, express or implied, induces persons to come upon the premises, is under a duty to exercise ordinary care to render the premises reasonably safe for such purposes, or at least to abstain from any act that will make the entry upon or use of the premises dangerous. Third. The gist of the liability in such cases consists in the fact that the person injured did not act merely on motives of his own, to which no sign of the owner or occupier contributed, but...