Hendershot v. N.Y., S. & W. R. Co.

• Decision Date: 19 July 1927
• Docket Number: No. 72.,72.
• Citation: 138 A. 206
• Parties: HENDERSHOT v. NEW YORK, S. & W. R. CO.
• Court: New Jersey Supreme Court

138 A. 206

HENDERSHOT

v. NEW YORK, S. & W. R. CO.

No. 72.

Supreme Court of New Jersey.

July 19, 1927.

Appeal from Circuit Court, Warren County.

Suit by James Hendershot against the New York, Susquehanna & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued January term, 1927, before GUMMERE, C. J., and TRENCHARD, J.

Hobart & Minard, of Newark (George S. Hobart and John E. Selser, both of Newark, of counsel), for appellant.

William C. Gebhardt & Son, of Jersey City (W. Reading Gebhardt, of Jersey City, of counsel), for respondent.

PER CURIAM. This is an appeal from the Warren county circuit court. The plaintiff had the verdict of a jury, and this is an appeal from the judgment entered upon such verdict.

Plaintiff was injured while in the employ of the defendant as a brakeman, and the suit was based on the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) and the Safety Appliance Act (U. S. Comp. St. § 8605 et seq).

The accident happened at 3 o'clock in the morning, at a point in defendant's road where there is a single track. Plaintiff was the head brakeman of a crew on a freight train going in a westerly direction pulled by two engines, the plaintiff riding in the first of the two engines in the fireman's cab where his duty required him to be for the purpose of throwing the switch for the train at what is known as Kinney's switch, where his train had orders to pass another train which was en route coming in the easterly direction. There was a heavy descending grade going in an easterly direction down to the place of the accident, and there was also a curve in the track. There were no automatic block signals on the line at this point. As the plaintiff sat in the cab of his engine, he suddenly saw two freight cars coming down the grade in an easterly direction towards his train, at a high speed. They crashed into the engine, the train was wrecked, and the plaintiff injured.

The two runaway cars which caused the wreck were loaded with cement, and had gotten away from the crew of the defendant operating another train which was then coming in an easterly direction. This train had orders to pass Hendershot's train at Kinney's switch, and so the crew was aware that this specific train was coming in an opposite direction. The east-bound train stopped at what is known as Green Pond Junction, and had orders to pick up the two cars of cement there.

The crew handled these two cars and placed them on one of the tracks at this junction with the idea of later attaching them to their train when they were ready, and taking them with them. One of these cars was a Maine Central car, and the other a Philadelphia & Reading Car. They were coupled together, and the hand brake appears to have been set to some extent on the Main Central car, but it did not hold the cars, and it may be inferred from the evidence that the brake was not in an efficient and proper condition. Moreover, the crew failed to set the hand brake on the Philadelphia & Reading car, despite the fact, as the evidence tended to show, that the rules of the company required that the hand brakes on both of these cars should be set under these circumstances, and it was also the custom so to do. There was some evidence that wooden blocks were placed under these cars, but this may be inferred to have been done in a negligent manner, for the blocks were of no avail in preventing the cars getting away. There was a derail on this track between these cars and the main line track of the New York, Susquehanna & Western Railroad, which would have prevented these cars from getting out on the main line track, and would have prevented the accident, but the crew failed to place this derail in position on the track, so, of course, it afforded no protection.

The consequence was that a short time thereafter one of the engineers of this train saw the two cars going out of the switch and out on the main line track, which was the beginning of their runaway journey. This engineer took his engine, and, together with another engine, coupled to it, gave chase to the cars, and, although they attained a speed of 30 miles an hour, and went a distance of one mile and one-half to Kinney's switch, they were unable to even catch sight of the runaway cars.

As we read the evidence, the defendant made no attempt to give any explanation for the happening of this accident.

1. The defendant contends that its motion for a nonsuit and for the direction of a verdict in its favor should have been granted on the ground that the plaintiff had failed to establish any allegations of negligence charged in the complaint.

We think that point is without merit. The complaint was broad, and charged negligence in several aspects. We think it is clear that the grounds of negligence which the court submitted to the jury, namely, failure to equip the cars which ran away with efficient brakes, and failure to use reasonable care in the hauling and handling of the cars, were comprehended within the complaint; and in that connection we would say that this case in many of its aspects is very similar to Smith v. New York, Susquehanna & Western R. R. Co., 46 N. J. Law, 7. In that case the holding of the court was, as stated in the headnote, as follows:

"A railroad company left a loaded car, coupled with two empty cars, standing on a switch which inclined towards their main track, the same being secured by their brakes and a railroad tie placed under the wheels of the loaded car; the cars got upon the main track and thereby an accident occurred, the plaintiff being injured. Held, the company was not irresponsible, as a matter of law, even though the cars could not have got on the main track but for...