Goodwin v. Cent. R. R. of N.J.

• Decision Date: 18 June 1906
• Parties: GOODWIN et ux. v. CENTRAL R. R. OF NEW JERSEY.
• Court: New Jersey Supreme Court

64 A. 134

73 N.J.L. 576

GOODWIN et ux.

v. CENTRAL R. R. OF NEW JERSEY.

Court of Errors and Appeals of New Jersey.

June 18, 1906.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Walter M. Goodwin and wife against the Central Railroad of New Jersey. Judgment for defendant, and plaintiffs bring error. Reversed.

William C. Gebhardt, for plaintiffs in error. Walter H. Bacon and George Holmes, for defendant in error.

GARRISON, J. The plaintiffs, who are husband and wife, sued to recover damages for personal injuries sustained by the latter in a collision between the wagon in which she was seated and a train operated by the defendant. The accident happened at a public crossing and the liability of the defendant was based at the trial upon its alleged failure to give proper signals for this crossing. The trial resulted in the direction of a verdict for the defendant upon the grounds (1) that the testimony that the audible signals were not given, although conflicting, did not raise a jury question, and (2) that the plaintiffs, upon their own showing, were guilty of contributory negligence.

In respect to each of these grounds we think that the trial court was in error.

1. Upon the first point the testimony viewed in the light most favorable to the plaintiff, as it must be in considering the error now complained of, presented a considerable mass of evidence both direct and inferential that the audible signals for the crossing were not given as required by the statute in force at the time this accident occurred, namely. September, 1002. The defendant's train which was made up of three passenger coaches each 60 feet long, and three or four freight cars, was running backward toward the crossing so that the rear end of the train was some 300 feet nearer to the crossing than was the locomotive. Whether the statutory provision in question applies to a case of this sort is not directly raised by any assignment of error, and has not been argued; but assuming that it does apply and that the continuous blowing of the whistle and ringing of the bell constituted the whole duty of the defendant, as declared in the case of New York, etc., Railroad Company v. Leaman, 54 N. J. Law, 202, 23 Atl. 691, 15 L. R. A. 426, the testimony whether such signals were given was admittedly of a conflicting" character, a conflict which the trial court decided as a question of fact upon the weight of the evidence, laying stress in so doing upon the consideration that the witnesses for the defense said that they heard the signals, while some of those upon whom the plaintiff relied merely said that they did not hear them. This circumstance apparently led the trial court to ignore the direct testimony of the plaintiffs that the signals were not given and to deny to the testimony of the other witnesses any probative force because of its negative character. This was neither the legal nor the logical effect of such testimony. The plaintiffs in their declaration alleged that these signals were not given, which was traversed by the defendant, hence it was incumbent upon the plaintiff to establish by testimony this material allegation. Reduced to its simplest elements the fact in issue was whether at a certain time and place certain sounds were produced. In a concrete proposition of this nature silence is as much a fact as sound; either may be the fact and the proof of one excludes the other, so that the point of difference is not in their susceptibility to proof by testimony, but in the nature of such testimony and the weight to be given to it. A sound heard by a witness includes the imperative implication that the witness was where he could hear such sounds, whereas the fact that a witness did not hear a given sound carries with it no such Implication which consequently must be supplied by other testimony, and even when such testimony is supplied the probative weight to be accorded to the fact that the witness did not hear the sound depends upon his proximity and state of attention or preoccupation and all those other circumstances that render it more or less probable that if the sound had been given the witness would have heard it. It is precisely these circumstances that render the...