Horandt v. Cent. R. Co. of N.J.

• Decision Date: 08 June 1909
• Citation: 78 N.J.L. 190,73 A. 93
• Parties: HORANDT v. CENTRAL R. CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

73 A. 93

78 N.J.L. 190

HORANDT

v. CENTRAL R. CO. OF NEW JERSEY.

Supreme Court of New Jersey.

June 8, 1909.

(Syllabus by the Court.)

Actions by Carrie S. Horandt, as executrix, by Carrie S. Horandt, by Rutb Horandt, by next friend, and by Reinhardt Bender, by next friend, against the Central Railroad Company of New Jersey. The suits were tried together, and verdict for plaintiff found in each case. Rules to show cause made absolute.

The four above-entitled suits grow out of a collision between an automobile owned and driven by deceased, Christopher Horandt, and a railroad train of the defendant company at Keyport, Monmouth county, on Sunday, July 7, 1907. Christopher Horandt was killed, and the automobile demolished. His wife, Carrie S. Horandt, his daughter, Ruth, and nephew, Reinhardt Bender, who were riding in the automobile, were all injured. The four suits were tried together at the Passaic circuit, a verdict for plaintiff found in each case, and rules to show cause granted why the verdicts should not be set aside and new trials had. No exceptions were reserved, and questions of both law and fact were argued on the return of the rules. The members of the party were on their way from Asbury Park to Paterson, and were passing northwardly through Keyport, about 4 p. m. of July 7th, on a main thoroughfare called Broad street, which is crossed by a single-track railroad operated by the defendant at an angle on the left or west of Broad street of 66 degrees 29 minutes and on the right, of 113 degrees 31 minutes. On the northerly side of the railroad, and less than 200 feet west of the center of Broad street, was the Keyport railroad station, with its semaphore signal. On each side of the railroad ran a line of telegraph poles and their wires. The track and its rails and ties show plainly on both sides of Broad street in the photographs submitted in evidence. There was a standard warning sign reading, "Look out for the Locomotive" on the west curb of Broad street some 23 feet south of the track, and on the other side of Broad street a post with an alarm bell, which bell was not ringing, however, and a sign which was undecipherable because of old and new lettering having run together, except the word "Danger," which clearly appeared in large letters in the center. Broad street is perfectly straight and almost level for a long distance south of the railroad, from which direction the automobile approached. Looking toward the right, the view of the railroad was unobstructed after approaching within 96 feet of the track. On the left, until within 75 feet of the track, a clear view of the railroad and of the station is shut off by buildings, the last of which is a small one-story garage, the nearest point of which is 62 feet from the south rail of the track, measured along the west side of Broad street, and, if projected at right angles to the center line of Broad street, would be 75 feet from the center of the track; but from this point onward the station and thetrack for a long distance are in full sight. There were no safety gates or flagman. The day was clear. It was a quiet Sunday afternoon. There was no other traffic of consequence going on in Broad street, and the wind was blowing from the direction of the train. The automobile was moving northward at about 12 miles an hour, and collided with the locomotive of a special train, which was traveling northeastwardly or toward the right at a rate of about 25 miles an hour. On the part of the plaintiff it was claimed that the statutory signals by ringing bell or blowing whistle were omitted, that neither signal was given, and that neither Mr. Horandt, nor any one in his party, was aware of the existence of a railroad at that place, or saw or heard the train until the moment of collision, or too late to avoid it. Motions to nonsuit and to direct a verdict for defendant were denied, and the case submitted to the jury on the theory (a) of negligence in failing to give the statutory signals; (b) that the jury were entitled to find the crossing a peculiarly dangerous one by reason of the angle of the tracks, obstructions to view, etc., and, in the language of the trial judge, to exact of the railroad company the duty of giving some visible notice of the approach of trains; (c) that negligence might be inferred from the placing of a crossing bell at the crossing, and the failure to sound it as a signal of the approach of the train in question.

Argued February term, 1909, before GUM-MERE, C. J., and SWAYZE and PARKER, JJ.

Wayne Dumont and Clifford L. Newman, for plaintiffs.

William A. Barkalow and Frederic J. Faulks, for defendant.

PARKER, J. (after stating the facts as above). Our examination of the evidence and proceedings in this case satisfies us that the verdict should be set aside and a new trial granted, and this on several grounds.

1. We are of opinion that the verdict, so far as predicated on the alleged failure of the defendant to give the statutory crossing signals by bell or whistle, was clearly against the weight of evidence. The three survivors of the accident testified they were looking straight ahead, saw no sign of a railroad, and heard no bell or whistle. Six other witnesses, at varying distances from the track, testified for the plaintiffs that they heard neither bell nor whistle. One was positive that the whistle did not blow, but was not sure about the bell, and said it might have rung, but he did not hear it. On the other hand, one witness, who was at the automobile garage, which hid his view of the train, was apprised of its approach by hearing the bell ring; another, who was driving on Main street, which is the next street west of Broad street, stopped his horse on account of hearing the bell, so as to let the train go by, and says that the bell continued to ring as the train crossed Main street. He also testified to continuous blowing of the whistle, but probably confused this with the blowing off of steam as testified to by another witness. His wife, who was with him in the carriage, gave similar testimony. Three other disinterested witnesses, Mr. Kellogg, Miss Kruser, and Mrs. Flynn, testified positively to the ringing of the bell for a considerable distance before the train reached the crossing. Mrs. Flynn said she was engaged in conversation at the time, and had to stop on account of the noise of the bell and of escaping steam from the locomotive. In addition the engineer, fireman, and baggageman of the train all swore definitely and positively to the ringing of the bell all the way from Matawan yard, a distance of over a mile. The case for the defendant is not as strong as in Eissing v. Erie Railroad, 73 N. J. Law, 343, 63 Atl. 856, but...