Goldsboro v. Cent. R. Co. of N.J.

• Citation: 37 A. 433,60 N.J.L. 49
• Parties: GOLDSBORO v. CENTRAL R. CO. OF NEW JERSEY.
• Decision Date: 26 May 1897
• Court: United States State Supreme Court (New Jersey)

37 A. 433

60 N.J.L. 49

GOLDSBORO

v. CENTRAL R. CO. OF NEW JERSEY.

Supreme Court of New Jersey.

May 26, 1897.

(Syllabus by the Court.)

Action by Edward Goldsboro against the Central Railroad Company of New Jersey, in which there was a judgment for plaintiff. On rule to show cause why a new trial should not be granted. Rule discharged.

Argued November term, 1896, before BEASLEY, C. J., and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

John W. Westcott and Thomas W. Trencbard, for plaintiff.

John L. Conover and William A. Barkalow, for defendant.

LIPPINCOTT, J. This action was brought to recover damages for injuries claimed to have been sustained by the plaintiff in a collision with a locomotive on the New Jersey Southern Railroad, at a crossing near Shephard's Mills, in the county of Cumberland, on the 28th day of December, 1892. The plaintiff was driving in an open wagon on a public road which approached this railroad crossing at about an angle of 20°, and as his horses reached the track they were struck by the locomotive and killed, his wagon was thrown to one side, and the plaintiff injured. The wagon road approached and entered upon the tracks on a down grade, with banks on either side. The railroad tracks were also on a down grade, between banks on either side to a considerable height. Upon the apex thus formed there were growing some pine trees or bushes which to some extent obscured the vision. The train came from the plaintiff's right, somewhat towards his back. The plaintiff claims that be looked in both directions from which a train might be expected, and listened at a reasonable distance from the track. On his left-hand side there was a wood, which was an obstacle to some extent to a clear vision. The plaintiff swears that he heard no signals of the approaching train, and in this he is corroborated by several witnesses. The contention of the defendant upon the point of contributory negligence was that the plaintiff had such an opportunity to see and hear the train approaching that his not seeing or hearing it could only arise from culpable default on his part in this respect, and that, therefore, on this ground there should have been a nonsuit or a direction of a verdict for the defendant. Whenever there exists a fair doubt upon the question of the contributory negligence of the plaintiff, the question must be submitted to the jury, and the answer to this contention of the defendant is to be found in the evidence in the case. The question whether the plaintiff could see or hear the approaching train in time to avoid the danger of collision was much controverted both by the direct as well as the circumstantial proof in the case, and it is only necessary to say this proof was in such a conflicting condition as required its submission to the jury. The question whether the statutory signals were given by the engineer of the train, by sounding the whistle or ringing the bell, in approaching the crossing, was a disputed one. The plaintiff swears they were not given, and he was listening as he approached the crossing. Three other witnesses in carriages or wagons Immediately behind the plaintiff, approaching the...