Fernetti v. W. Jersey & S. R. Co.

• Decision Date: 01 March 1915
• Docket Number: No. 21.,21.
• Citation: 93 A. 576,87 N.J.L. 268
• Parties: FERNETTI v. WEST JERSEY & S. R. CO.
• Court: New Jersey Supreme Court

93 A. 576

87 N.J.L. 268

FERNETTI

v. WEST JERSEY & S. R. CO.

No. 21.

Court of Errors and Appeals of New Jersey.

March 1, 1915.

Appeal from Supreme Court.

Action by Joseph Fernetti, administrator of Eva Fernetti, deceased, against the West Jersey & Seashore Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bourgeois & Coulomb, of Atlantic City, for appellant. Morris F. Levin and Isadore V. Klenert, both of Paterson, for appellee.

KALISCH, J. This is an appeal from a judgment entered upon a verdict recovered in the Atlantic circuit, by the plaintiff respondent against the defendant appellant The plaintiff's intestate, Eva Fernetti, while attempting to cross the tracks of the defendant company at Minotola, was struck and killed by one of its locomotive engines There were no gates nor a flagman at the crossing. The defendant company had installed an electric bell at the crossing to give warning of the approach of its trains. The plaintiff's intestate was riding a bicycle, and dismounted at the crossing to permit a south-bound train to pass. Immediately after the last car cleared the crossing, Eva mounted her bicycle and proceeded across the tracks, only to be struck and killed, as above stated, by a locomotive engine which came along on the north-bound track, and which was concealed from Eva's view momentarily by the passing electric train. There was some conflict in the testimony whether she ran into the side of the engine or was passing in front of it, when struck. There was testimony tending to establish that there was neither a whistle blown nor a bell rung by the approaching locomotive engine, but that the electric bell at the crossing started to ring when the electric train approached, and before the train had entirely passed the bell ceased to ring, and then it was that Eva started to cross over on her bicycle. But for the passing of the electric train Eva would have had a clear view of about 1,000 feet in the direction of the approaching locomotive engine. It was a conceded fact that there was no notice posted at the crossing that the electric bell was out of order. The main legal questions presented for review upon this appeal arise out of the refusal of the trial judge to grant the motions made, by counsel of appellant, for a nonsuit after the plaintiff had rested his case, and for the direction of a verdict for the defendant, after the testimony on both sides was all in.

It is argued by counsel of appellant that the plaintiff's decedent was guilty of negligence contributing to her injury and death, in attempting to cross the tracks immediately behind the electric train, as a matter of law, because she did not look or listen effectively, as it was her duty to do, and that if she had waited until the electric train had passed far enough away from the crossing for her to make looking effective, she would have had an unobstructed view of 1,000 feet in the direction that the engine came that struck her. It is conceded by counsel of appellant that the act of 1909 (P. L. 1909, p. 137) was applicable to the crossing where the plaintiff's decedent was killed. This being so, the provision of that act which declares, "no plaintiff shall be barred of the action because of his failure of the person injured or killed to stop, look and listen before passing over said crossing" is a complete refutation of the appellant's contention. There was testimony to the effect that there was an electric bell at the crossing. It had ceased ringing when the electric train passed over. It was not ringing when the locomotive engine approached. There was no notice posted at the crossing that the electric bell was out of order. Such a condition of things, under the statute referred to, absolved the plaintiff's intestate from stopping, looking, and listening. Brown v. Erie R. R. Co., 91 Atl. 1023.

But it is further...