Hackney v. West Jersey and Seashore Railroad Company

• Court: New Jersey Supreme Court
• Writing for the Court: REED, J.
• Citation: Hackney v. West Jersey and Seashore Railroad Company, 78 A. 747, 78 N.J.L. 454 (N.J. 1909)
• Decision Date: 15 November 1909
• Parties: JESSE B. HACKNEY, PLAINTIFF, PLAINTIFF IN ERROR, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT, DEFENDANT IN ERROR

78 A. 747

78 N.J.L. 454

HACKNEY

v. WEST JERSEY & S. R. CO.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1909.

Syllabus by the Court.

Palter, Minturn, and Bogert, JJ., dissenting.

Error to Supreme Court.

Action by Jesse B. Hackney against the West Jersey & Seashore Railroad Company. There was a directed verdict for defendant, and plaintiff brings error. Affirmed.

John W. Wescott, for plaintiff in error. Bourgeois & Sooy, for defendant in error.

REED, J. This writ brings up a judgment upon a verdict for the defendant in error, directed by the trial court.

The facts appearing upon the trial are these: Mr. Hackney, the plaintiff, on November 17, 1906, between 9 and 10 o'clock in the forenoon, was driving along Atlantic avenue, in Atlantic City, a team attached to a wagon loaded with brush. The brush was loaded on shelvings, and the plaintiff was sitting on a seat supported by the shelvings on the front of the wagon, about midway between the sides. The load of brush was about 12 to 14 feet wide, 16 feet long, and 6 feet above the head of the driver. The plaintiff says: "The brush was right up abreast of me." Some of the limbs extended two, three, or four feet where they went over in front of him. Thus embowered, he drove southerly down the avenue toward Ventnor, driving on the right-hand side of defendant's double trolley tracks which lie on Atlantic avenue. He drove on until he reached a cross street known as Frankford avenue. At that point he wished to cross over the trolley tracks so as to be able to proceed with his load down to the beach. He attempted to cross the tracks at this Frankford avenue crossing, and in the attempt was struck by a trolley car, and his horses were killed. This crossing of the railroad track, plaintiff says, is about 10 or 12 feet in length. From what appears in other parts of the testimony he evidently meant that it was a plank crossing 10 or 12 feet wide. Plaintiff says that on approaching this crossing he had to drive out near the curb, so that in starting to make the turn toward the crossing he could make the curve as long as possible, and thus bring the hind wheels of his long-geared wagon in upon the crossing. He says he "stopped his team before he entered the track to see if he could see anything, and that he couldn't see nothing, so he spoke to his horses, and they went on, and, as he entered the track, the trolley struck him." He also says the trolley gave no whistle, bell, or warning.

Respecting the conduct of the motorman who was driving the colliding car, there was testimony from which the jury could have inferred negligence. It is in testimony that, when the car was approaching the crossing, the attention of the motorman was not directed to the track over which his car was about to pass, but that he was looking down. One witness, a carpenter who was working upon a building about 200 feet from the crossing, says he noticed the team of the plaintiff as he started toward the track, and also noticed the conductor—obviously meaning the motorman—and he seemed to be preoccupied with some of the mechanism of the car, as he supposed, and, as he got directly opposite the hind part of plaintiff's wagon, he suddenly raised his head and threw the brake on, but the momentum of the car was such that she slid on and upset the wagon. Another witness, who was driving a wagon also loaded with brush behind the plaintiff's wagon, says that just before reaching the crossing the motorman stood with his head down, looking down at the floor. This testimony was uncontradicted, and it does not appear what diverted the attention of the motorman from the track in front of him. It does appear that his attention was so diverted. Whether the plaintiff's wagon might have been seen by the motorman, in spite of the other wagon similarly loaded, which was following the plaintiff's was a question for the jury. If he could have seen, then the question whether he should have anticipated the possibility of the plaintiff's turning across the track (as any driver had a right to cross the track at that point) and so have had his car under control was also a question for the jury. So we think the direction of the verdict cannot be vindicated upon the ground that the defendant's servants were conclusively free from negligence.

The question, then, is whether the plaintiff himself was so clearly negligent and whether his negligence so contributed to the accident that the court properly directed a verdict against him upon that ground. It is manifest that the plaintiff did not look for a car coming from the direction of the colliding car, for he could not look in that direction at all. He had placed himself in a position where it was impossible for him to look in that direction. The brush on both sides of him, and over him, cut off all possibility of observation in that direction. His words are: "I could not see nothing on the side of me or behind me. It (the brush) was right up abreast of me. It was right up there six feet high above my head from the seat I set on." He says that some of the limbs of the brush extended two to four...