Germanus v. Lehigh Valley R. Co.

• Decision Date: 21 June 1907
• Parties: GERMANUS v. LEHIGH VALLEY R. CO.
• Court: New Jersey Supreme Court

67 A. 79

74 N.J.L. 662

GERMANUS

v. LEHIGH VALLEY R. CO.

Court of Errors and Appeals of New Jersey.

June 21, 1907.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Emil Germanus, as administrator of Michael Marcincsak, against the Lehigh Valley Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.

McCarter & English, for plaintiff in error. Thomas L. Raymond, for defendant in error.

VROOM, J. The plaintiff's intestate was one of a gang of laborers in the employ of the defendant company. They were working on the day of the accident on the main line of the defendant's railroad between Elizabeth and Roselle, and were engaged, under the direction of one Kutora, as foreman, in tamping ties. The track at that point to the west is directly straight for over a mile. The plaintiff's intestate was working on the eastbound track, facing Elizabeth, with his back toward the direction from which trains would come. He was killed by being run down by a special engine running on the said eastbound track, and when he was struck was bending forward working with his pick. The men constituting the gang were strung out in a line on the said track. The deceased was working standing with his back to the approaching engine, and was the third in the line. The foreman, Kutora, was some eight or nine steps from him. About the time of the accident, a long, empty, and noisy freight train was passing on the west-bound track, along side of the place where the men worked. The engine which ran down and killed plaintiff's intestate was in use by the officials of the road on a tour of inspection, and was returning from such a trip, and had on board certain officers of the company. It was claimed by the engineer that the bell was rung and the whistle blown from Roselle until the deceased was struck. The testimony on the part of the plaintiff was that no signals were given of the approach of the engine. According to the evidence of the plaintiff's witnesses, it was the custom of the foreman to call out to the men to look out on the approach of trains, and even to push them away if they did not move in time, but that on this occasion no warning at all was given by the foreman. The foreman, Kutora, testified that he had given two warnings, and was corroborated by one of the gang of men.

At the close of the plaintiff's case a motion was made for a nonsuit, which was denied by the learned trial justice, and this refusal forms the basis for the first error assigned. The ground urged in support of the motion was "that the place where the plaintiff's intestate was working was one of obvious danger, and that he can only escape from the liability that comes from occupying such a position, in a suit against the master, upon substantial proof of the existence of a custom on the part of the company to notify the employés, so situated as the decedent in this case was, of the approach of a train, and that there is no proof of the custom of giving warning by the boss or foreman." I think the motion to nonsuit was properly denied. As the case stood when the case for the plaintiff was closed, there was proof uncontradicted that it was the custom of the company by its foreman to warn men working on the tracks, as this gang were, of the approach of trains, and that in this particular instance the warning was not given. The deceased had the right to rely upon such a warning being given, in case there was any danger from approaching trains. D'Agostino v. Penna. R. R. Co., 72 N. J. Law, 358, 60 Atl. 1113. It was correctly held in that case that where a workman in the discharge of his duty has placed himself in a position of probable danger, and where he has a right to expect a warning before the danger becomes actual, and he is injured because no warning is given, the question whether he assumed the risk or was guilty of contributory negligence cannot be decided by the court. Albanese v. Central R. R. Co., 70 N. J. Law, 241, 57 Atl. 447; Harmer v. Reed Apartment Co., 68 N. J. Law, 332, 53 Atl. 402. This case is distinguished from the recent decision of this court in Precodnick v. Lehigh Valley R. R. Co., 65 Atl. 1047. There the necessity of the giving warning to the men while working together as a gang, under the custom or system proved, was held part of the duty owed by the company to them; but it appeared that the deceased in that case was working at a distance from the gang, and the custom was clearly shown that when so sent out by himself it was incumbent upon the workman to look out for his own safety; the distinction clearly being that in the case now under consideration he had the right to expect a warning, while in the Precodnick...