Hess v. Atl. City R. Co.

• Decision Date: 28 February 1921
• Docket Number: No. 63.,63.
• Citation: 113 A. 133
• Parties: HESS v. ATLANTIC CITY R. CO.
• Court: New Jersey Supreme Court

113 A. 133

HESS

v. ATLANTIC CITY R. CO.

No. 63.

Court of Errors and Appeals of New Jersey.

Feb. 28, 1921.

Appeal from Circuit Court, Camden County.

Action by Jonathan Hess against the Atlantic City Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Wescott & Weaver of Camden, for appellant.

French & Richards, of Camden, for respondent.

MINTURN, J. The plaintiff was injured while walking along defendant's right of way, near Tuckahoe station, in Cape May county, by being struck by one of defendant's engines. The trial court nonsuited, upon the ground that the plaintiff at the time occupied the status of a trespasser, while the gravamen of the plaintiff's case was that he was there by implied invitation, and occupied the status of an invitee, or at least a licensee.

The plaintiff had been an employee of the defendant, both as a fireman and engineer, and therefore his knowledge of the locus in quo was superior to that of a stranger, who might be said to be inveigled by appearances, and yet appearances even to a stranger in this situation were not of an inviting character; for it was in evidence that at the point where the tracks cross the public road, 1,200 feet north of the station, towards which the plaintiff was directing his steps, there was erected a sign, "Do Not Trespass on the Railroad," and near the station at the water tower was erected a similar sign. Between the series of tracks which occupy the right of way is the usual space covered with cinders and coal débris, which was also obstructed by unprotected switches, pipes, and wires protruding several inches above the surface of the ground, and as the tracks neared the station they converged, so as to obliterate the distinctive space which presented the alleged pathway. The practical effect of the convergence is to force one using the path to walk upon the ties of the tracks or to cross over them, so as to avoid contact with passing cars; and it was at the point where the plaintiff had emerged from the alleged pathway, and was walking on the ties that he was struck by the extending portion of a passing engine. So far conscious of the obvious dangers incident to the use of such a pathway for public travel was he that the plaintiff had cautioned his children against its use.

At night no effort to protect the public in its use, by lights, guards, or otherwise, was made by the company as a practical recognition of its public use, but the space was treated as inter-track spaces are generally treated in the operation of railroads, as existing, not for wayside convenience, or as a necessity for public travel, but as spaces of necessity in the construction and conformation of road-beds and their appurtenances, in order to admit of the proper and safe manipulation of passing trains. In no sense was the space treated as a public highway, either from the obvious configuration of the ground and tracks, and their necessary...