Fithian v. Pa. R. Co.
| Decision Date | 04 March 1918 |
| Docket Number | No. 45.,45. |
| Parties | FITHIAN v. PENNSYLVANIA R. CO. |
| Court | New Jersey Supreme Court |
Appeal from Supreme Court.
Action by Joel W. Fithian, as administrator of Philip Nugent, deceased, against the Pennsylvania Railroad Company. To review a judgment for plaintiff, defendant appeals. Affirmed.
Gaskill & Gaskill, of Camden, for appellant. Joseph C. Haines and John W. Wescott, both of Camden, for appellee.
The refusal of the court below to order a nonsuit and to direct a verdict for appellant, when moved to do so by appellant's counsel, are made the fundamental basis of this appeal.
The appellant having entered into its defense, we need only consider, in respect to the motions made, whether there is any evidence in the cause, arising from any source, which, in law, warranted the submission of the facts, by the trial court, to the decision of the jury. The facts developed at the trial are these:
The plaintiff's intestate, Philip Nugent, met his death, on the 6th day of April, 1915, as the result of being struck by an east-bound train of the appellant company at a point a short distance west of Berwyn station, in the state of Pennsylvania. The train that struck the deceased was running west from Philadelphia. On the date mentioned, near the point where the accident happened, the deceased was in the employ of Gibbs & Hill, and belonged to a gang of men at work placing iron screens underneath the span of an overhead wagon bridge crossing the tracks of the appellant company, and at which character of work the gang had been engaged for two weeks prior to the day of the accident. In doing this work, the deceased and his fellow workmen were, at times, necessarily required to walk along and across the tracks of the appellant company for a short distance west of Berwyn station. The tool box was located on a raised platform of the appellant's freight house, at the Berwyn station; the platform being on the northerly side of the tracks, the side on which passengers alight from trains running west from Philadelphia. Prior to the day of the accident the appellant company had issued an order to its train crews, commanding them, during working hours, to drift (or to proceed without power applied) under those bridges upon which men were at work. This order was communicated by the foreman to the men in the presence and hearing of the deceased.
After the making of this order it appears that the appellant's trains drifted along at the point where the men were at work on the bridges. On the morning of the day of the accident, the deceased, on his way to work, alighted from a train at Berwyn station, went to the tool box and took therefrom a pair of overalls, and then proceeded along the northerly side of the railroad tracks to a point a little over 300 feet from the bridge, where it became necessary to cross the tracks of the railroad company, four in number, in order to reach a certain path, beginning a short distance east of the base of the wagon bridge and leading up to the level of the floor of the bridge, which bridge spanned a deep cut, through which the railroad tracks ran and upon which bridge work was being done, by the workmen of Gibbs & Hill, of the character above mentioned. The deceased stopped, and looked up and down the tracks, and observing no train, he started to cross and did cross two tracks, when he stopped again and looked towards...
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