Jacobson v. New York, S. & W. R. Co.

• Decision Date: 03 July 1915
• Citation: 87 N.J.L. 378,94 A. 577
• Parties: JACOBSON v. NEW YORK, S. & W. R. CO.
• Court: New Jersey Supreme Court

94 A. 577

87 N.J.L. 378

JACOBSON

v. NEW YORK, S. & W. R. CO.

Supreme Court of New Jersey.

July 3, 1915.

(Syllabus by the Court.)

Appeal from District Court, Bergen County.

Action by Gerald F. Jacobson against the New York, Susquehanna & Western Railroad Company. From judgment for plaintiff, defendant appeals. Reversed, and venire de novo awarded.

Argued February term, 1915, before TRENCHARD, BERGER, and BLACK, JJ.

George S. Hobart, of Jersey City (Collins & Corbin, of Jersey City, on the brief), for appellant. Walter G. Winne and Randolph Perkins, both of Jersey City, for appellee.

TRENCHARD, J. The trial of this action resulted in a verdict for the plaintiff for an injury to his automobile. The defendant company on this appeal complains of the denial of its motions for nonsuit and for the direction of a verdict in its favor.

We pause to remark that there is no merit in the contention of the appellee that we should not consider this appeal, because the transcript of the stenographic report of the proceedings and testimony certified by the judge was not filed within 15 days. The rule is that such transcript, certified by the judge of the district court under chapter 138, p. 259, of the Laws of 1905 (2 C. S. 1910, p. 1957, par. 13b), although not transmitted to the clerk of the Supreme Court within 15 days by the appellant, may be treated as a part of the state of the case, when the appellee has made no objection to such state of the case, under rule 155 of this court, and no preliminary motion to strike out such part of the state of the case has been made. No such objection or motion was made in this case, and we shall therefore consider such statutory return.

We are thus brought to the merits of this controversy. We are of the opinion that the motions for nonsuit and for the direction of a verdict for the defendant should have been granted. The evidence, when both motions were denied, viewed in the light most favorable to the plaintiff, would have justified' the jury in finding the following matters of fact:

The plaintiff, on a clear, dark night, was driving his Ford touring car on a public highway towards the defendant's railroad crossing at a speed of from 12 to 15 miles an hour. He was familiar with the road and knew that the tracks were there. His automobile was equipped with electric headlights of ordinary brilliancy, and they were lighted. When he was 20 feet away, he observed something on the crossing. He could have stopped his automobile in from 12 to 15 feet; but, thinking it was a van or wagon, he did not slacken speed or stop, but attempted to go around the obstruction. When he had gone 5 or 6 feet farther he put on the brakes, but nevertheless hit a freight car of the defendant's train, which was momentarily standing on the crossing. The automobile was slightly damaged by the impact. Immediately thereafter the train passed on.

The motions for nonsuit and for a direction in favor of the defendant were both grounded upon the reason, among others, that there was no proof of negligence upon the part of the defendant. We think such motions should have been granted for reasons we will now state:

To entitle the plaintiff to go to the jury, it was of course essential that he should produce evidence tending to show that the defendant was negligent, and that its negligence was the proximate cause of the injury. We fail to find such evidence. The plaintiff does not contend that the defendant was negligent in the performance of any statutory duty. It appeared that the defendant company maintained at the crossing a proper warning sign, "Look Out for the Locomotive." Indeed, the learned trial judge expressly charged the jury that the only statutory duty in the circumstances resting on the defendant had been performed. There...