Dickinson v. Erie R. Co.

• Decision Date: 14 September 1911
• Citation: 81 N.J.L. 464,81 A. 104
• Parties: DICKINSON v. ERIE R. CO.
• Court: New Jersey Supreme Court

81 A. 104

81 N.J.L. 464

DICKINSON

v. ERIE R. CO.

Court of Errors and Appeals of New Jersey.

Sept. 14, 1911.

Syllabus by the Court.

Gummere, C. J., and Parker, J., dissenting.

Error to Supreme Court.

Action by Joel Dickinson against the Erie Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.

Herbert Clark Gilson, for plaintiff in error.

Cortlandt & Wayne Parker, for defendant in error.

TRENCHARD, J. This action was brought to recover damages sustained by the plaintiff in the way of injuries to his person and the destruction of his automobile, occasioned by a collision with a locomotive engine operated by the defendant company, at a highway grade crossing at Howells, Orange county, N. Y. According to the evidence introduced by the plaintiff, no bell, whistle, or other warning was given by the defendant's train, and there was no flagman, gate, or electric bell at the crossing. At the trial, and here, therefore, it seems to have been properly conceded that there was thus presented at least a jury question as to the negligence of the defendant The trial judge nonsuited the plaintiff on the ground of his contributory negligence, and the judgment entered thereon is now here for review.

It appeared that the highway upon which the plaintiff was traveling runs north and south, and the railroad east and west. The plaintiff, who was riding in and operating an automobile, was going in a northerly direction. His wife and daughter were riding with him. As the plaintiff approached the crossing, he came to the top of a hill about 200 feet distant from the crossing, and from that point the highway runs slightly downgrade until a point 20 feet from the track is reached. There were three tracks, the first to be crossed was the east-bound; the second, the west-bound, on which the train was coming; and the third was a siding. When the plaintiff reached the top of the hill, he slowed down, and from that point proceeded "very slowly; about as fast as a man would walk, four or five miles an hour." The power of the automobile was turned off, and it was at "low speed which acted as a brake." According to the testimony, the automobile then made no noise. As the plaintiff approached, the view to the west was unobstructed. The view to the east, from which direction the train came, was obstructed by a high bank of earth running parallel with the highway for about 500 feet to a point about 26 feet from the tracks. A considerable part of that space was occupied by the defendant's freight shed, and by telegraph poles and other obstructions. The result was, as stated by the trial judge, in dealing with the motion to nonsuit: "It would not be until a person on the highway had cleared the northerly line of the freight shed that he would have a distinct view of the west-bound track to the east for a sufficient distance to make his observation of much practical use. This northerly line of the freight shed is nine feet three inches south from the nearest rail." After referring to the testimony as to the length of the automobile and the position of the plaintiff therein, the trial judge concludes: "It results, I think, from the proofs that Mr. Dickinson could first get a long unobstructed view to the east at just about the time when his front wheels came on the south rail of the east-bound track." It was clearly open to the jury to have drawn like inferences from the testimony. The plaintiff looked both to the east and west, and listened constantly from the time the crossing could first be seen which was at the top of the hill. When the last obstruction (the freight shed) was passed, the train was suddenly seen approaching at a speed of 40 or 50 miles an hour. Whereupon the plaintiff turned the steering wheel to the west and jumped from the automobile, dragging his wife with him. In jumping he injured his knee. His daughter also jumped, and the automobile continued by force of gravity over the first track, and was struck by the locomotive on the west-bound track. The distance between the south rails of the two tracks was 13 feet. The plaintiff and his family all testify that they alighted upon the east-bound track. The learned trial Judge held the view that when he jumped the plaintiff was in a place of safety, and nonsuited upon the theory that he was guilty of contributory negligence in not stopping the automobile, instead of jumping. We are of opinion that the nonsuit cannot be supported upon the ground taken by the trial judge, nor upon any other ground.

The defendant first contends that the plaintiff "was bound to stop before crossing the tracks." As a general rule, a traveler on a highway approaching a railroad crossing is bound to exercise reasonable care— that is, such care and prudence as an ordinarily prudent man would exercise under like circumstances—in...