Graves v. Baltimore & N. Y. Ry. Co.
| Decision Date | 08 June 1908 |
| Citation | 69 A. 971,76 N.J.L. 362 |
| Court | New Jersey Supreme Court |
| Parties | GRAVES v. BALTIMORE & N. Y. RY. CO. |
(Syllabus by the Court.)
Appeal from District Court of Elizabeth.
Action by Ferdinand L. Graves against the Baltimore & New York Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Argued February term, 1908, before GARRISON, SWAYZE, and TRENCHARD, JJ.
Edward Q. Keasbey, for appellant. John A. Bernhard, for appellee.
This is an appeal from a judgment for the plaintiff entered on the verdict of a jury in the district court of the city of Elizabeth. The plaintiff's horse and wagon, driven by plaintiff's agent, were traveling along St. George's avenue, Linden township, Union county, at midnight. The wagon was struck by an engine drawing a train of freight cars on a single-track railroad of the defendant company which crosses the avenue at an angle.
On behalf of the defendant it is insisted that the plaintiff should have been nonsuited or a verdict against him should have been directed, because there was no evidence of negligence on the part of the defendant, and because the plaintiff's driver was guilty of contributory negligence. We think both questions were for the jury. The testimony upon the part of the plaintiff, if believed, justified the jury in finding as a fact that the night was dark and cloudy; that the driver "could not see the track until within 20 feet of it"; that, when the horse was 10 or 15 feet from the track, the driver stopped, looked in both directions, and listened; that, hearing nothing and seeing nothing, he drove on and continued to look and listen, and had nearly cleared the track when the engine hit the rear wheel of his wagon; that the engine had no headlight or light of any kind; that no bell was rung, no whistle was blown, and no other signal was given. Both the driver of the plaintiff's wagon and the driver of the wagon immediately behind him were in a position to see and hear, and both testify that they looked and listened, and that no bell was rung, no whistle was blown, and that there was no headlight or other light upon the engine. It is true that the testimony on the part of the defendant tended to show a different state of facts.
A nonsuit should not be granted nor a verdict ordered for the defendant if the evidence is conflicting, and leaves the mind in a state of some doubt. The credibility of witnesses is a question for the jury. Baumann v. Hamburg-American Packet Co.,...
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