Dickinson v. Erie R. Co.

• Decision Date: 16 March 1914
• Docket Number: No. 47.,47.
• Citation: 90 A. 305,85 N.J.L. 586
• Parties: DICKINSON v. ERIE R. CO.
• Court: New Jersey Supreme Court

90 A. 305

85 N.J.L. 586

DICKINSON

v. ERIE R. CO.

No. 47.

Court of Errors and Appeals of New Jersey.

March 16, 1914.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Joel Dickinson against the Erie Railroad Company. From judgment for defendant on directed verdict, plaintiff appeals. Reversed, and venire de novo awarded. Herbert Clark Gilson, of Jersey City, for appellant. Cortlandt & Wayne Parker, of Newark, for appellee.

WALKER, Ch. The plaintiff sued to recover damages on account of personal injuries and loss of his automobile while attempting to avoid a collision with defendant's train at Howells, N. Y., on July 31, 1909. The first trial resulted in a nonsuit, which was reversed by this court. Dickinson v. Erie Railroad Co., 81 N. J. Law, 464, 81 Atl. 104, 37 L. R. A. (N. S.) 150. At the second trial a verdict in favor of the plaintiff was rendered, which was set aside by the Supreme Court on rule to show cause, on the ground that the weight of evidence showed that the plaintiff was guilty of contributory negligence. Per curiam filed November 21, 1912. The third trial resulted in a direction of a verdict in favor of the defendant, on the ground that the evidence was substantially the same as the testimony on the second trial. This appeal was taken from the judgment entered on that verdict.

In directing a verdict for the defendant on the trial now under review, Adams, J., speaking of the testimony in the case, said: "It seems to me to be substantially the very same testimony as it was before, and I cannot conceive that there would be the slightest probability that the Supreme Court, if it were called on to review this case again, would not find that it was substantially and essentially identical with the case on the last trial. Taking that view of the case, I take it to be my duty to grant this motion and direct a verdict for the defendant" The learned trial judge, in directing a verdict for the defendant, proceeded upon the assumption that the Supreme Court on rule to show cause would have granted a new trial if the verdict had again passed for the plaintiff.

But by the rule laid down in Brown v. Paterson Paper Co., 69 N. J. Law (40 Vroom) 474, 55 Atl. 87, a second concurring verdict, upon the same state of facts, or slightly varying evidence, would cause the court to hesitate before granting a third trial. The circuit judge was not, however, confronted with the proposition of granting a rule to show cause why a verdict should...