Gehring v. Atl. City R. Co.

• Decision Date: 27 November 1907
• Parties: GEHRING v. ATLANTIC CITY R. CO.
• Court: New Jersey Supreme Court

68 A. 61

75 N.J.L. 490

GEHRING

v. ATLANTIC CITY R. CO.

Court of Errors and Appeals of New Jersey.

Nov. 27, 1907.

Error to Supreme Court.

Action by George G. Gehring, by next friend, against the Atlantic City Railroad Company. From an order directing a verdict and a judgment for defendant, plaintiff appeals. Affirmed.

William I. Garrison and J. J. Crandall, for plaintiff in error. Clarence L. Cole, for defendant in error.

GUMMERE, C. J. The single assignment of error in this case presents the question whether the trial court properly directed a verdict for the defendant railroad company.

The suit is brought to recover compensation for injuries received by the plaintiff through being struck down at a highway crossing by one of the defendant company's trains. The ease made by the proofs submitted on behalf of the plaintiff, and supplemented by the undisputed testimony of the defendant, was as follows: Plaintiff, a boy about 13 years old, left his home on his bicycle about a half hour before sunset to go to the post office at Brigantine Beach. The highway upon which he traveled crossed the tracks of the defendant company at right angles at a point about 100 yards from his home. The planks at the crossing had been removed, leaving the stone ballast of the railroad exposed, thereby making the surface of the highway very rough. Three tracks had been laid at this point. The first one—as the crossing was reached from the direction in which the plaintiff was traveling —was a siding. The next was the southbound track leading from Camden to Atlantic City. The third was the north-bound track between the same points. Upon the siding, in close proximity to the crossing, there were two freight cars standing. Whether they were both of them south of the crossing, or one of them on each side of the crossing, is left uncertain by the testimony. The distance from the easterly rail of the siding to the westerly rail of the north-bound track was 20 feet and 5 inches. The plaintiff, after passing over the siding, and clearing the overhang of the freight cars, stopped and looked for approaching trains. He then had an unobstructed view along the track both north and south for considerably more than a mile. He neither heard nor saw any train approaching, and went on over the crossing. When he reached the north-bound track, his wheel became caught in the stone ballasting between the rails, and was brought very nearly, or entirely, to a standstill. (The plaintiff himself testified both ways upon this point. In answer to a question by his counsel he testified that the wheel was held straight up by the stones, but could not move, and continued in this position from one to two minutes. Subsequently, in answer to a question by the court whether he intended to state that the bicycle came to an absolute stop, he replied, "No.") While still upon the track with his wheel, he was run down by a north-bound train of the defendant company on its way to Camden, which approached the crossing without any warning being given either by the ringing of a bell or the blowing of a whistle.

On these facts does it conclusively appear that the plaintiff's accident was partly due to his own negligence? It is so thoroughly settled by the repeated decisions of this court that it is the duty of the traveler upon a highway before crossing a railroad to look up and down the tracks, and also listen for approaching trains, and that his failure to do so is such negligence as will prevent a recovery if he is run...