Holmes v. Pennsylvania R. Co.

Decision Date07 March 1907
Citation66 A. 412,74 N.J.L. 469
PartiesHOLMES v. PENNSYLVANIA R. CO.
CourtNew Jersey Supreme Court

Error to Supreme Court.

Action by Anna K. Holmes, as administratrix of the estate of Joseph J. Holmes, deceased, against the Pennsylvania Railroad Company. From a judgment dismissing the suit, plaintiff brings error. Affirmed.

George Gilbert, for plaintiff in error. Thomas L. Gaskill, for defendant in error.

GUMMERE, C. J. This suit is brought by the administratrix of Joseph J. Holmes, deceased, to recover from the defendant corporation the pecuniary loss sustained by his widow and next of kin through his death. He was killed about 2 o'clock in the morning of the 4th of November, 1902, while driving along Cooper street, in the town of Beverly, in attempting to cross the tracks of the defendant company in front of an approaching train. The sole ground averred in the declaration for charging the defendant company with responsibility for his death is the failure to use reasonable care in the operation of its train as it approached the crossing at which he was struck down. Upon the trial of the cause the plaintiff attempted to support the averment of negligence by proof that the statutory provision requiring a bell to be rung, or a whistle to be blown, when a train approaches a highway crossing, was not complied with by the employés in charge of the defendant company's train. Two witnesses were called on behalf of the plaintiff to testify to that fact. The first was Samuel Wickward, who testified that he was following Holmes along Cooper street, and heard the crash when the collision occurred. He was asked on his direct examination: "Q. Did you hear any bell rung or whistle blown for the train? A. No whistle at all. Q. Nor bell? A. I don't know. I wouldn't like to say whether I heard any bell or not." On his cross-examination he affirmed the statement made by him in his testimony in chief. The other witness was a Mrs. Wilmerton, who lived about half a square from the scene of the accident. She testified that she had occasion to get up about 2 o'clock in the morning of November 4th, and that about 10 minutes afterward, and before she had returned to her bed, she heard a heavy crash coming from the direction of the crossing. She was asked but a single question upon the point in controversy, viz., "Did you hear the whistle blow or the hell ring?" Her answer was: "No, sir." On the part of the defense the proof was plenary that the bell was rung, if the witnesses who were called to prove that fact were entitled to credit. They were the engineer, the fireman, and one of the brakemen of the train; and they all swore positively that the bell was rung in a way which showed full compliance with the statute. This was the state of the proofs when the case was rested; and upon application made by the defendant, the trial judge directed a verdict in its favor.

The plaintiff now assigns error upon this direction. In our opinion the proofs in the cause afforded no support whatever for the conclusion that the bell was not rung in the manner required by the statute. The testimony of Wickward did not even tend to prove that fact, for it will equally justify a finding...

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20 cases
  • Rau v. N. Pac. Ry. Co.
    • United States
    • Montana Supreme Court
    • June 12, 1930
    ...Minn. 366, 109 N. W. 835, 8 L. R. A. (N. S.) 643, 116 Am. St. Rep. 422, 9 Ann. Cas. 935;Holmes v. Pennsylvania R. Co., 74 N. J. Law, 469, 66 A. 412, 12 Ann. Cas. 1031, and note; Foley v. N. Y. Cent., etc., R. Co., 197 N. Y. 430, 90 N. E. 1117, 18 Ann. Cas. 631, and note; Keiser v. Lehigh Va......
  • Sheehan v. Terminal Railroad Assn., 34596.
    • United States
    • Missouri Supreme Court
    • May 2, 1939
    ...as it backed in. The evidence in that regard is wholly negative. Crossno v. Term. Railroad, 41 S.W. (2d) 796; Holmes v. Penn. Ry. Co., 74 N.J.L. 469, 66 Atl. 412, 12 Ann. Cas. 1031; Patterson v. Gaines, 6 How. 589; White v. So. Ry. Co., 151 Va. 302, 144 S.E. 424; Elias v. Collins, 237 Mich.......
  • Sheehan v. Terminal R. Ass'n of St. Louis
    • United States
    • Missouri Supreme Court
    • May 2, 1939
    ... ... whistle on the train as it backed in. The evidence in that ... regard is wholly negative. Crossno v. Term ... Railroad, 41 S.W.2d 796; Holmes v. Penn. Ry ... Co., 74 N. J. L. 469, 66 A. 412, 12 Ann. Cas. 1031; ... Patterson v. Gaines, 6 How. 589; White v. So ... Ry. Co., 151 Va. 302, ... Railroad, 85 S.W.2d ... 447; Boles v. Hines, 226 S.W. 272; 1 Roberts, ... Federal Liabilities of Carriers (1 Ed.), sec. 483; ... Pennsylvania Railroad Co. v. Manning, 62 F.2d 294; ... Industrial Acc. Comm. v. Davis, 259 U.S. 182, 66 ... L.Ed. 888, 42 S.Ct. 489; C. M. & St. P. Ry. Co. v ... ...
  • Rau v. Northern P. Ry. Co.
    • United States
    • Montana Supreme Court
    • June 12, 1930
    ... ... Cotton v. Willmar, etc., R. Co., 99 Minn. 366, 109 ... N.W. 835, 8 L. R. A. (N. S.) 643, 116 Am. St. Rep. 422, 9 ... Ann. Cas. 935; Holmes v. Pennsylvania R. Co., 74 N ... J. Law, 469, 66 A. 412, 12 Ann. Cas. 1031, and note; ... Foley v. N.Y. Cent., etc., R. Co., 197 N.Y. 430, 90 ... ...
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