Hires v. Atl. City R. Co.

• Decision Date: 25 February 1901
• Citation: 48 A. 1002,66 N.J.L. 30
• Parties: HIRES v. ATLANTIC CITY R. CO.
• Court: New Jersey Supreme Court

48 A. 1002

66 N.J.L. 30

HIRES

v. ATLANTIC CITY R. CO.

Supreme Court of New Jersey.

Feb. 25, 1901.

(Syllabus by the Court.)

Action by Isaac E. Hires against the Atlantic City Railroad Company. Verdict for plaintiff. Rule to show cause why new trial should not be granted. Rule discharged.

Argued February term, 1901, before the CHIEF JUSTICE and COLLINS and DIXON, JJ.

Howard Carrow, for plaintiff.

Charles V. D. Joline and J. Willard Morgan, for defendant.

DIXON, J. On June 22, 1890, about 10 o'clock in the morning, the plaintiff was driving in a loaded wagon, with a single horse, upon the Egg Harbor road, in a direction nearly due north. Crossing that road runs the double-tracked railroad of the defendant, in a direction about north, 35° west. In attempting to cross the railroad at that point, the plaintiff's vehicle was struck by a train coming from the south, on the easterly track, at the rate of 45 miles an hour. The present suit was brought to recover compensation for the injuries then sustained, and resulted, at the Salem circuit, in a verdict for the plaintiff, which the defendant now seeks to set aside.

The defendant assigns, in substance, four reasons: (1) That the trial justice permitted the jury to determine whether a greater duty rested on the defendant than that of giving the statutory signal by bell or whistle; (2) that there was not sufficient evidence of the defendant's negligence; (3) that plain tiff's contributory negligence was conclusively shown; and (4) that the damages are ex cessive.

On the first point, the rule established in this state is that, if a steam-railroad company creates extraordinary danger at a high way crossing, it must use extra precautions to give notice of approaching trains. Railroad Co. v. Matthews, 36 N. J. Law, 531; Railroad Co. v. Randel, 47 N. J. Law, 144; Railroad Co. v. Shelton, 55 N. J. Law, 342, 26 Atl. 937. In the present case, the railroad was constructed in a cut, 12 or 15 feet deep, which partly concealed trains from travelers descending on the highway towards the track. On the angle lying between the railroad and highway, towards the south, grew underbrush and trees, which in June were thick with foliage. On the bank of the cut, near the westerly side of the track, the company had placed piles of ties, four or five feet high; and, as the track approached the crossing from the south, it curved from a northerly to a northwesterly direction. Because of these conditions, resulting from the location and construction of the tracks and the use made by the company of the...