Diebold v. Pa. R. Co.

• Decision Date: 07 June 1888
• Citation: 14 A. 576,50 N.J.L. 478
• Parties: DIEBOLD v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

14 A. 576

50 N.J.L. 478

DIEBOLD

v. PENNSYLVANIA R. CO.

Supreme Court of New Jersey.

June 7, 1888.

(Syllabus by the Court.)

Case certified from circuit court, Essex county; before Justice DEPUE.

Argued February term, 1888, before BEASLEY, C. J., and MAGIE and GARRISON, JJ.

J. B. Vredenburgh, for the rule. Cortlandt Parker, contra.

GARRISON, J. This is an action by an administratrix for the death of her decedent. At the trial of the cause, a motion for a nonsuit, made at the close of plaintiff's case, was refused. After verdict, a rule to show cause why a new trial should not be granted, was allowed by the circuit judge. This rule to show cause has been certified to this court for its advisory opinion. From the evidence adduced at the trial on behalf of the plaintiff the following facts appear: Diebold, the decedent, and one Mundy, a fellow-truckman, were engaged in hauling heavy freight to the Market-Street freight depot of the Pennsylvania Railroad Company at Newark. The accident by which Diebold lost his life occurred on the afternoon of May 17, 1886. Earlier on the same day, Diebold and Mundy had delivered one load at the depot, and had left orders that the car be placed in position under a derrick to receive their second load. Upon returning with this load, Mundy attended to looking up the car, and Diebold jumped off the wagon, and went into the freight station to transact the necessary business at the office of the shipping clerk. The offices of both the shipping clerk and of Woodruff, the station master, were on the street, not within the yard. When Diebold was next seen, he was walking in the freight-yard in company with Quinn, an employe of the defendant, and a moment later, while standing on or near the track of the railroad, within the yard, he was struck by a freight car that was being "shunted" into the freight-house, and killed. We are of opinion that, upon this state of facts, plaintiff cannot recover for the death of her decedent. The presence of Die hold in the yard where he was killed, was not essential to the transaction of his business with the company. The only business he and Mundy had with the company there was to get their freight loaded on a car from their wagon in the street, and to have their bill of lading signed. The evidence shows that for both of these purposes the company had provided offices accessible from the public highway. Nothing in the case shows that Diebold's presence in the drilling yard was in any sense...