Girardin v. N.Y. & Long Branch R. Co.
| Decision Date | 17 January 1947 |
| Docket Number | No. 36.,36. |
| Citation | 135 N.J.L. 135,50 A.2d 872 |
| Parties | GIRARDIN v. NEW YORK & LONG BRANCH R. CO. et al. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the Supreme Court.
Action by Elizabeth W. Girardin, administratrix ad prosequendum of the estate of Louis Girardin, deceased, against New York & Long Branch Railroad Company and another for the wrongful death of plaintiff's decedent when struck by train. From a judgment entered on a verdict of no cause of action, plaintiff appeals.
Judgment reversed, and a venire de novo awarded.
Parsons, Labrecque & Borden, of Red Bank, (Theodore D. Parsons, of Red Bank, of counsel), for appellant.
William F. Hanlon, of New York City, (J. Victor Carton, of Asbury Park, of counsel), for respondents.
The plaintiff appeals from a judgment entered on a verdict of no cause of action.
This suit was instituted to recover damages for the death of Louis Girardin. The decedent, who had a pre-existing crippled foot, was attempting to cross the railroad tracks located at Bridge Avenue and Monmouth Street in Red Bank, while returning to his place of employment, and was instantly killed by a Pennsylvania Railroad train going in a northerly direction. The accident occurred at a place where the intersection of the two streets is diagonally crossed by the right of way of the railroad and where the defendants maintain a crossing for vehicles and pedestrians. At the crossing in question, there are three sets of gates to protect traffic, but the gates when lowered do not extend over the sidewalks.
The plaintiff contends that the defendants, as the train approached the crossing in question, failed and neglected to sound any whistle or bell, or to give a signal of the approach of the train. The defendants concede that the testimony ‘was conflicting on whether or not the Pennsylvania train involved gave any signal as it approached the crossing, and the testimony was also contradictory on whether or not the gates in question were down before the plaintiff started across the tracks.’ There was testimony that defendants' employees were operating pneumatic power drills in making repairs, at or near the crossing in question, which may have prevented the decedent from hearing any signal. The jury returned a verdict of no cause of action.
The appellant argues that the learned trial judge erred because: ‘the trial court after charging the jury at the request of the plaintiff that the deceased was absolved from stopping, looking and listening before passing over the railroad crossing where gates were operated, contradictorily charged the jury that the existence of the gates, although negligently operated or maintained, did not absolve the deceased from the duty of observation.'
The statutes applicable to the instant matter are R.S. 48:12-82 and 48:12-84, N.J.S.A., and were read by the trial court to the jury. Section 82 provides that, where a ‘Railroad company shall have assumed to establish and maintain safety gates, and such gates were not down at least half a minute before such locomotive or trian crossed the highway * * *, the question whether the person so killed or injured was or was not guilty of contributory negligence shall be a question to be determined by the jury * * *.'
Section 84 provides that: ‘Whenever a railroad shall install any safety gates, bell or other device designed to protect the traveling public at any crossing, or has placed at such crossing a flagman, any person * * * shall, during such hours as posted notice at the crossing shall specify, be entitled to assume that the safety gates or other warning appliances are in proper order and will be duly and properly operated * * *.'
Both the plaintiff and the defendants submitted to the trial court their respective requests to charge the jury. The court read to the jury requests Nos. 6 and 7 submitted by the plaintiff, as follows:
...
To continue reading
Request your trial
-
Feldman v. Lederle Laboratories
...stop at crossing and then instructed that he was obliged only to use reasonable care at crossing); Girardin v. New York & Long Branch R.R., 135 N.J.L. 135, 138, 50 A.2d 872 (E. & A.1947); Horton v. Smith, 128 N.J.L. 488, 489, 27 A.2d 193 (E. & A.1942); Price v. Phillips, 90 N.J.Super. 480, ......
-
Kaplan v. Haines
...'the proximate cause' or 'proximately caused' could have done no more than leave the jury in doubt. Girardin v. New York & L.B.R.R. Co., 135 N.J.L. 135, 138, 50 A.2d 872 (E. & A. 1947). From the fact that one of the items of damage claimed was the aggravation of Mrs. Kaplan's back condition......
-
Ellis v. Caprice
...jury may have been, it had no way of knowing which of the two versions represented the correct rule. Girardin v. New York & L.B.R.R. Co., 135 N.J.L. 135, 138, 50 A.2d 872 (E. & A. 1947); Trecartin v. Mahony-Troast Construction Co., 18 N.J.Super. 380, 390, 87 A.2d 349 (App. Div. In charging ......
-
Maccia v. Tynes, A--553
...negligence. Wassmer v. Public Service Electric & Gas Co., 122 N.J.L. 367, 374, 5 A.2d 762 (E. & A.1939); Girardin v. New York & L.B.R. Co., 135 N.J.L. 135, 50 A.2d 872 (E. & A.1947). Similarly (but see Bush v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851 (Sup.Ct.1946)), they have re......