Eissing v. Erie R. Co.

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtGUMMERE, C. J.
Citation63 A. 856,73 N.J.L. 343
Decision Date11 June 1906
PartiesEISSING v. ERIE R. CO.
63 A. 856
73 N.J.L. 343

EISSING
v.
ERIE R. CO.

Supreme Court of New Jersey.

June 11, 1906.


Error to Circuit Court, Hudson County.

Action by Gustav Eissing against the Erie Railroad Company. From a judgment for plaintiff, defendant brings error. Reversed.

Argued February term, 1906, before GUMMERE, C. J., and HENDRICKSON, J.

Gilbert Collins, for plaintiff in error. Warren Dixon, for defendant in error.

GUMMERE, C. J. The plaintiff is a stock farmer near the village of Secaucus in Hudson county. On a certain day in the month of September, 1903, he sent his hired man, Joseph Burglie, with a wagon and team of horses, to the city of New York for a load of swill. On his return from the city a little after 9 o'clock in the evening, Burglie, while driving across the defendant company's railroad tracks, was run down by one of its trains and killed. The wagon in which he was riding was demolished, and the team of horses seriously injured. This suit is brought by the plaintiff, as the owner of the horses and wagon, to recover for the damages sustained by him.

The ground upon which the defendant company's liability was rested in the declaration was the failure of the engineer to discharge the duty imposed upon the company by the statute, of giving warning of the approach of its train to the crossing, by blowing a whistle at frequent intervals, or ringing a bell continuously for 900 feet before reaching the crossing. To prove this failure of duty three witnesses were called on behalf of the plaintiff, two of whom were himself and wife. He testified that he heard a whistle blown just before the crash of the collision, but that he heard no bell rung. His wife testified that she also heard a whistle blown just before the collision, and that she heard a bell after it occurred, but that she heard no bell before the collision. At the time of the accident they were, each of them, at their own home, which, according to the testimony of the plaintiff himself, was 2,000 yards, or more than a mile and an eighth, away from the crossing. Viewing the facts as to location in the most favorable light for the plaintiff, the point at which, the defendant company was required by the statute to begin the blowing of its whistle, or the ringing of its bell, was therefore at least 1,700 yards (or only 60 yards less than a mile) away from his house. It would have been most strange if at that distance they had heard it even if they had been listening for it, which they do not claim they were doing. The mere fact that a person who is practically a mile...

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4 practice notes
  • Columbus & Greenville R. Co. v. Lee, 26535
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1928
    ...the jury to determine from the evidence. 3 Elliott on Railroads, 1653; 71 Am. Dec. 236; 18 P. 305; 82 N.E. 986; 44 P. 607; 30 N. J. L. 188; 63 A. 856; 63 N.Y. 622; 21 N.W. 241; Artz v. Railroad Co., 34 Ia. 154; Gunby v. Colo. & S. R. R. Co., 235 P. 556; 78 A. 1048; 69 A. 1087; 61 A. 903......
  • Rapp v. Public Service Coordinated Transport, No. A--465
    • United States
    • New Jersey Superior Court – Appellate Division
    • September 11, 1951
    ...Mazanek v. Pennsylvania-Reading Seashore Lines, 125 N.J.L. 394, 15 A.2d 885 (E. & A.1940). The cases of Eissing v. Erie R.R. Co., 73 N.J.L. 343, 63 A. 856 (Sup.Ct.1906) and Holmes v. Pennsylvania R.R. Co., 74 N.J.L. 469, 66 A. 412 (E. & A.1907), cited in the brief for defendant, do ......
  • Ackerley v. Pa. R. Co. Trauzettel, Nos. 12, 13.
    • United States
    • United States State Supreme Court (New Jersey)
    • May 13, 1943
    ...of evidence justifying a submission of the question to the jury as one of fact.' [Citing cases, including Eissing v. Erie R. R. Co., 73 N.J.L. 343, 63 A. 856]. We think this principle is sound when applied to the testimony of one who, by reason of his surroundings, would be unlikely to noti......
  • Cowell v. Pa. R. Co., No. 21.
    • United States
    • United States State Supreme Court (New Jersey)
    • May 18, 1925
    ...testimony that the whistle was blown and the bell rung stands unchallenged. The cases of Eissing v. Erie R. R. Co., 73 N. J. Law, 343, 63 A. 856, and Holmes v. Penna R. R. Co., 74 N. J. Law, 469, 66 A. 412, cited in the brief for defendant appellant, do not apply where the facts (as in this......
4 cases
  • Columbus & Greenville R. Co. v. Lee, 26535
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1928
    ...the jury to determine from the evidence. 3 Elliott on Railroads, 1653; 71 Am. Dec. 236; 18 P. 305; 82 N.E. 986; 44 P. 607; 30 N. J. L. 188; 63 A. 856; 63 N.Y. 622; 21 N.W. 241; Artz v. Railroad Co., 34 Ia. 154; Gunby v. Colo. & S. R. R. Co., 235 P. 556; 78 A. 1048; 69 A. 1087; 61 A. 903......
  • Rapp v. Public Service Coordinated Transport, No. A--465
    • United States
    • New Jersey Superior Court – Appellate Division
    • September 11, 1951
    ...Mazanek v. Pennsylvania-Reading Seashore Lines, 125 N.J.L. 394, 15 A.2d 885 (E. & A.1940). The cases of Eissing v. Erie R.R. Co., 73 N.J.L. 343, 63 A. 856 (Sup.Ct.1906) and Holmes v. Pennsylvania R.R. Co., 74 N.J.L. 469, 66 A. 412 (E. & A.1907), cited in the brief for defendant, do ......
  • Ackerley v. Pa. R. Co. Trauzettel, Nos. 12, 13.
    • United States
    • United States State Supreme Court (New Jersey)
    • May 13, 1943
    ...of evidence justifying a submission of the question to the jury as one of fact.' [Citing cases, including Eissing v. Erie R. R. Co., 73 N.J.L. 343, 63 A. 856]. We think this principle is sound when applied to the testimony of one who, by reason of his surroundings, would be unlikely to noti......
  • Cowell v. Pa. R. Co., No. 21.
    • United States
    • United States State Supreme Court (New Jersey)
    • May 18, 1925
    ...testimony that the whistle was blown and the bell rung stands unchallenged. The cases of Eissing v. Erie R. R. Co., 73 N. J. Law, 343, 63 A. 856, and Holmes v. Penna R. R. Co., 74 N. J. Law, 469, 66 A. 412, cited in the brief for defendant appellant, do not apply where the facts (as in this......

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