Jacowicz v. Del., L. & W. R. Co.

• Decision Date: 27 January 1915
• Docket Number: No. 66.,66.
• Citation: 87 N.J.L. 273,92 A. 946
• Parties: JACOWICZ v. DELAWARE, L. & W. R. CO.
• Court: New Jersey Supreme Court

92 A. 946

87 N.J.L. 273

JACOWICZ

v. DELAWARE, L. & W. R. CO.

No. 66.

Court of Errors and Appeals of New Jersey.

Jan. 27, 1915.

Error to Supreme Court.

Action by Frank Jacowicz against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff was affirmed by the Supreme Court, and defendant brings error. Affirmed.

Frederic B. Scott, of New York City, for appellant.

Michael Dunn and Charles B. Dunn, both of Paterson, for appellee.

KALISCH, J. This is an appeal from a judgment on a verdict rendered in the Passaic circuit, in favor of the plaintiff against the defendant company.

The plaintiff appellee was in the employ of the Magor Car Company. The plant of the company was adjacent to the main line of the defendant company at Athenia. The building used by the Magor Company was a large shed, the entire front of which was open. The business of the company was the making and repairing bodies of cars used by railroad companies for the carriage of freight.

The defendant company maintained a railroad track from its main tracks, which extended about halfway into the shed, where a traveling crane was located. This track was used by the defendant company for the purpose of delivering material to the Magor Company and to take away cars that were to be delivered, which were repaired or made by the Magor Company.

The track was maintained by the defendant company and solely under its management and control. The plaintiff's work consisted of riveting bolts on the ends of the bodies of cars that were made or repaired by his employer, the Magor Company, which car bodies rested on wooden horses elevated about three feet from the floor.

At the time the plaintiff was injured the following condition of things existed: There was a car body resting on wooden horses almost in line with the defendant's track, and between three and five feet from the end of the track. About two feet directly behind this car body, and in line with it, stood a second car body also elevated on wooden horses, and it was while the plaintiff was between the two car bodies riveting bolts on the second car body that he met with his injuries. In front of the first car body, and on the defendant's track, stood three cars in line; the rear one being at the end of the track. It was while the defendant's servants were making an attempt to couple the cars to a train of nine other cars, which was backed into the shed for that purpose, the rear car was pushed off the rear end of the track with sufficient force so as to knock against the first car body, which in turn was jammed against the second car body, at which the plaintiff was at work, crushing him severely.

There was evidence which tended to establish that the defendant's servants knew of the condition of things which then existed before any attempt was made to back the train into the shed to couple the cars. They knew of the nearness of the car bodies to the end of the track, and knew that the servants of the Magor Car Company were at work in and about the car bodies, and that they would be unaware of the approach of the train, unless they had actual notice of it. It is conceded that no notice or warning was given by the defendant's servants to the plaintiff of the approach of the train, nor is it claimed that the plaintiff had any notice or warning of the approach of the train on that track. The appellant claims that this state of facts fails to show any duty owing by the defendant to the plaintiff which it omitted to perform; and hence actionable negligence cannot be predicated thereon against it, and therefore the refusal of the trial judge to award a judgment of nonsuit, as requested, was error.

We think the facts show a failure on defendant's part to perform a duty which it owed...