Howe v. N. R. Co. of N.J.

• Decision Date: 20 June 1910
• Citation: 76 A. 979,78 N.J.L. 683
• Parties: HOWE v. NORTHERN R. CO. OF NEW JERSEY et al.
• Court: New Jersey Supreme Court

76 A. 979

78 N.J.L. 683

HOWE

v. NORTHERN R. CO. OF NEW JERSEY et al.

Court of Errors and Appeals of New Jersey.

June 20, 1910.

(Syllabus by the Court.)

Swayze, Minturn, Bogert, and Congdon, JJ., dissenting.

Error to Supreme Court.

Action by Pearl Howe, by her next friend, against the Northern Railroad Company of New Jersey and another. Judgment of nonsuit, and plaintiff brings error. Afiirmed.

Mackay & Mackay, for plaintiff in error.

Collins & Corbin, for defendants in error.

PARKER, J. The plaintiff, a young girl 11 years of age, was injured by being struck by a train of the defendant the Erie Railroad Company at a highway crossing in Cresskill, Bergen county. At that point the railroad was a double-track line, the tracks running approximately north and south, and the highway on which the plaintiff was walking or standing at the time she was injured running at right angles, or nearly so, with the railroad. To the east of the railroad tracks and to the south of the highway was the Cresskill stalion of the defendant company, and at the time of the accident a north-bound train of the defendant, which was not scheduled to stop at Cresskill, was nevertheless standing at the station and across the road, entirely preventing any crossing of the railroad tracks. It appeared that this north-bound train had been stopped on account of some minor accident relating to the locomotive or running gear of the train, the engine was blowing off steam and there were other noises in connection with the standing train. The plaintiff came from the west toward the east, and desiring to cross the railroad tracks found her passage blocked and was standing there close to the nearer or south-bound track when she was struck by the pilot or some other part of the locomotive of a south-bound train, sustaining injuries on account of which the action was brought. After hearing the plaintiff's evidence the trial court directed a nonsuit, and the judgment entered thereon has been brought up by this writ of error.

The declaration charged, first, negligence of the defendant in failing to provide extra safeguards at the crossing against unusual dangers claimed to exist at that point; second, negligence in running the south-bound train over the crossing and past the station while the north-bound train was standing there; third, negligence in failing to warn and protect persons using the crossing, and especially the plaintiff, against the approach of the south-bound train while the north-bound train was in the station; and finally, in the failure of its servants in charge of operating the south-bound train to give the statutory signals by bell or whistle.

With respect to the first ground of negligence, an attempt was made on the trial to show that there were obstructions to the view of the track toward the north by a person approaching on the street from the west; but if anything was shown in this regard, there was total absence of proof that the railroad was in any way responsible for the conditions. As to the second and third grounds of negligence, we know of no rule of law that justifies an inference of negligence on the part of a railroad as to a foot passenger on a highway crossing the same, because while one of its trains has been blocking the train on the...