Egerter v. Cent. R. Co. of N.J.

• Decision Date: 01 September 1910
• Parties: EGERTER v. CENTRAL R. CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

77 A. 471

80 N.J.L. 4

EGERTER

v. CENTRAL R. CO. OF NEW JERSEY.

Supreme Court of New Jersey.

Sept. 1, 1910.

Error to Circuit Court, Hunterdon County.

Action by Lizzie Egerter, administratrix of Oliver Egerter, deceased, against the Central Railroad Company of New Jersey. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Argued November term, 1909, before GUMMERE, C. J., and GARRISON and VOORHEES, JJ.

George H. Large and George Holmes, for plaintiff in error.

William C. Gebhardt, for defendant in error.

GUMMERE, C. J. This action was brought to recover the pecuniary loss sustained by the widow of one Oliver Egerter by his death, which resulted, as was alleged by the plaintiff, from the negligence of the defendant company, his employer, in failing to use proper precautions for his safety while engaged in its work. The trial resulted in a verdict for the plaintiff, and judgment was entered thereon.

At the time of his death Egerter was at work, with other employes of the defendant company, in repairing track at a point where it passed through a "cut" upon a curve. While so engaged he was run down and killed by an engine of the defendant which was being used by its officers for inspection purposes. It was the duty of the foreman of the track repair gang to give the members thereof timely notice of the approach of a train, or engine, so that they might step off the track before it reached them. The foreman gave this warning as soon as he saw the engine coming around the curve; but at that time it was so close upon the repair gang that, although the other members escaped, Egerter failed to get off the track in time to avoid being run down. As the engine approached the "cut," and while yet at some distance from it, its whistle was blown and its bell rung; the latter being continued up to the time of the happening of the accident. All these facts were proved on the part of the plaintiff; no testimony having been offered by the defendant. At the close of the case there was a motion for a nonsuit, and, afterward, for the direction of a verdict for the defendant. Both of these motions rested upon the grounds: First, that the proofs failed to disclose any negligence chargeable to the defendant; and, second, that they showed contributory negligence on the part of the decedent. The motions were, each of them, refused by the trial court, and that refusal is now assigned for error.

In our judgment the trial court properly declined to take the case...