Hummer v. Lehigh Valley R. Co.

• Decision Date: 18 November 1907
• Citation: 75 N.J.L. 703,67 A. 1061
• Parties: HUMMER v. LEHIGH VALLEY R. CO.
• Court: New Jersey Supreme Court

67 A. 1061

75 N.J.L. 703

HUMMER

v. LEHIGH VALLEY R. CO.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1907.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Benjamin Hummer against the Lehigh Valley Railroad Company for damages to his wagon in a railroad (crossing accident. Judgment for plaintiff (65 Atl. 126), and defendant brings error. Reversed, and new trial awarded.

Collins & Corbin, for plaintiff in error. Elmer W. Demarest, for defendant in error.

DILL, J. The writ of error in this case brings up for review a judgment of the Supreme Court, affirming a judgment against the railroad company for damage to a wagon by a freight train on a grade crossing at Linden avenue in Jersey City. The question here is whether the trial judge erred in submitting the case to the jury on two questions: First, was the company negligent because the engineer did not stop the train as soon as he reasonably might have stopped it after being warned? and, second, was there contributory negligence on the part of the plaintiff? We think that the company was not negligent, and hence do not consider the question of the plaintiff's contributory negligence.

At 3 o'clock in the morning of November 7, 1905, the plaintiff, a milkman, on his regular route, was coming from the northwest on Linden avenue, approaching, at an acute angle, the double-track grade crossing of the Lehigh Valley Railroad. The night was very dark and thick, and it was impossible to see for any distance. There were no lights at or about the crossing. Linden avenue is an unfrequented dirt lane in the outskirts of Jersey City, a siugle driveway 12 or 14 feet wide, while the planked railroad crossing is 34 feet wide. The crossing is at a sharply acute angle. Before the plaintiff reached the crossing he got off the road, and, to use his language: "I think I rather got to the railroad really before I thought I was there, because it all looked alike; it was so dark." He drove on the crossing with the wheels on the left-hand or easterly side off the planking. He endeavored to continue his way across the rails, in the direction in which he was headed, onto the planking; but his horse failed to pull the loaded milk wagon over the rails. He backed and attempted to turn between the tracks back in the direction from which he had come. In so doing, the rear wheel on the left-hand side of the wagon became wedged in between the planking and the outer rail of the west-bound track. The plaintiff, at this juncture, remembered that the regular milk train from the east, going west, was due, and, as he says, not knowing whether the train had gone or not, he started to unload the milk from the wagon to lighten the load and release the wheel. He spent some two minutes unloading, and while thus engaged looked up and saw the headlight on the engine of the approaching train coming around the Chapel Avenue curve, opposite the ice houses, about 600 feet from the Linden Avenue crossing. He says that he did not then have time to get the wagon out of the way, but only to get out of the way himself. He picked up his lantern and ran up the track to signal the oncoming train, which passed him approximately 150 feet from the crossing. The train was brought almost to a standstill before it reached the crossing, and the pilot of the engine was on the crossing but a few feet when the train stopped. Nevertheless, it struck the left-hand rear wheel of the wagon. The plaintiff says that, from the time he saw the headlight of the engine until the collision occurred, less than a minute intervened. This was the plaintiff's case. There was no evidence of any specific omission on the part of the train employés to do anything which could reasonably have been done to have brought the train sooner to a standstill. No evidence was offered that the train, under the existing conditions, could have been sooner stopped.

The defendant moved for a nonsuit on the ground that the plaintiff had simply proved that an accident occurred, but that he failed to prove that it was through any fault of the defendant. This motion was denied, and, we think, erroneously. "Where the evidence is equally consistent with either view—with the existence or nonexistence of negligence—it is not competent to the judge to leave the matter to the jury. The party who affirms negligence had altogether failed to establish it. That is a rule which ought never to be lost sight of." Cotton v. Wood, 8 C. B. (N. S.) 568, at page 572.

The plaintiff's case derived no additional strength either from the defense or the evidence in rebuttal. For the defense, by exhibits—scale map and photograph—and by testimony, it appeared that this train from Jersey City, going west, passed under Chapel Avenue overhead bridge 1,500 feet from Linden avenue. For 750 feet thereafter the track ran in a straight line. Then came the Chapel Avenue curve, about 250 feet long. The ice houses, opposite which the plaintiff first saw the engine headlight, are on this Chapel Avenue curve, somewhat less than 600 feet from the Linden Avenue crossing. The westerly end of this Chapel Avenue curve is about 500 feet from the Linden Avenue crossing, and from this point the track is straight for 250 feet to the Linden Avenue curve, about 100 feet long, the westerly end of which is 150 feet, in an oblique line, from the crossing where the accident occurred. On the curve nearest Chapel avenue the fireman, from his side of the cab, could see the Linden Avenue crossing, but the engineer could not; while, on the curve nearest Linden avenue, the engineer, but not the fireman, could see the crossing. The defendant proved that the planking at the crossing was in good order, and was 34 feet wide. The train was long and heavy, made up of 10 cars, mail, express, and milk cars, going west on the main west-bound track. It was equipped with air brakes. It was running on schedule time and at its regular speed, 25 miles an hour. The night was very dark, and, as the witnesses said, thick and misty, and the ground wet, although it was not raining. At the Linden Avenue crossing there was, as a rule, little or no traffic. When the train was well along on the Chapel Avenue curve, having just passed the ice houses, between 500 and 600 feet from the Linden Avenue crossing, the fireman saw a white light down the track. That the fireman saw this light just after the engine passed the ice houses, where the plaintiff first saw the headlight, demonstrates that the fireman was on the alert and caught the signal as soon as given. The fireman at once called to the engineer to "see what that man on the track with the lantern wanted." The engineer, although he could not see the lantern at this point on the curve, immediately, as both the fireman and the engineer testified, shut off the steam and put on the air brake. On the straight stretch, some 100 feet further, the engineer saw a white lantern waved on the track. As he came around the short Linden Avenue curve, about 150 feet from the place of the accident, he passed the plaintiff, by the side of the track, waving the lantern. He then had the steam off and the air brake on. As the plaintiff had testified that the night was so dark that everything "looked alike," and that he could not see the road nor the planked crossing even when he got to the railroad, so the engineer testified that, owing to the darkness, it was not until the engine was right onto the crossing that he, for the first time, saw the milk wagon, without a light, its back towards the oncoming train, the rear wheel only inside the outer rail. The train was stopped with the pilot of the engine only five or six feet over the crossing, and it was barely moving when the pilot touched the wheel of the wagon, caught and held between the rail and the planking. The wheel was not therefore pushed out of the way by the pilot, but was broken. This was the defendant's case.

The Supreme Court below thought that the cross-examination of the engineer gave rise to a conflict of fact, and left open to dispute whether the engineer stopped the train with reasonable promptness after receiving warning of the peril of the plaintiff. We cannot so view it The engineer was subjected to a subtle cross-examination. Many questions were misleading because, unintentionally no doubt, they contained a misstatement of fact. The engineer on cross-examination said that when, on the Chapel Avenue curve, the fireman called his attention to the white light, the train was going about 25 miles an hour. This was between 500 and 600 feet from the Linden Avenue crossing. He said that subsequently, on the Linden Avenue curve, about 150 feet from the crossing, he passed the plaintiff, waving his lantern. Then followed testimony which was subject to comment by the Supreme Court below: "Q. And you say that you were going at about 25 miles an hour at that time?" He had not said he was going 25 miles an hour on the Linden Avenue curve, but on the Chapel Avenue curve, when and where the fireman called his attention to the light, and hence he answered: "A. Yes, sir; when the fireman called my attention to him." He thus refuted what otherwise might be the inference, from an unqualified affirmative answer, that on the Linden Avenue curve the train was still going at the rate of 25 miles an hour. "Q. And that was four or five cars away from the crossing?"—a question, if not with a double meaning, certainly capable of two interpretations. The engineer, however, prevented any misapprehension, and answered: "A. Four or five cars from the crossing to the curve"—plainly meaning that it was four or five cars' length from the Linden Avenue crossing to the Linden Avenue curve. Counsel, however, still stating facts applicable to the Chapel Avenue curve in a question relating to the Linden Avenue curve—a subtle method of misstatement of fact—asked: "Q. You say that you shut off the steam and put on the air brake right away?" Because he had...