Jones v. Pa. R. Co.

• Decision Date: 28 February 1910
• Citation: 78 N.J.L. 571,75 A. 907
• Parties: JONES v. PENNSYLVANIA R. CO. et al.
• Court: New Jersey Supreme Court

75 A. 907

78 N.J.L. 571

JONES

v. PENNSYLVANIA R. CO. et al.

Court of Errors and Appeals of New Jersey.

Feb. 28, 1910.

Error to Circuit Court, Camden County.

Action by Mollie E. Jones against the Pennsylvania Railroad Company and another. Judgment for plaintiff, and the mentioned defendant brings error. Affirmed.

Gaskill & Gaskill, for plaintiff in error.

Wescott & Wescott, for defendant in error.

PITNEY, Ch. The plaintiff, while riding as a passenger upon a street railway car in the city of Camden operated by the Public Service Corporation, was injured in a collision that occurred between that car and a railroad train operated by the Pennsylvania Railroad Company. To recover her damages she sued both companies jointly. The action resulted in a judgment in favor of the plaintiff and against both defendants. The Pennsylvania Railroad Company alone prosecutes this writ of error.

The only questions raised are: (1) Whether the trial court erred in refusing motions for nonsuit and for direction of a verdict in favor of the plaintiff in error; and (2) whether the court erred in refusing a motion subsequently made for arrest of judgment and award of a venire de novo, this motion being based upon an alleged irregularity in the taking and recording of the verdict.

The first question turns upon whether there was any evidence of negligence on the part of the plaintiff in error. The bills of exception disclose that at the place in question the tracks of the Pennsylvania Railroad Company cross the street at grade, and that at the time of the collision this company was engaged in construction work preparatory to the elevation of its tracks. The grade crossing was still in use, and was guarded by gates so far as the principal tracks were concerned. But there was a temporary construction track that ran along outside of the gates, and on that side from which the street car approached. On each side of the crossing the retaining wall of the proposed railroad embankment had been constructed to a sufficient height, and near enough to the street railway tracks to seriously interfere with the view of approaching railway trains by the motormen operating the street cars. The negligence attributed to the plaintiff in error consisted in this: That a train was backed down along the construction track to and over the crossing without giving proper warning to travelers upon the street (including the motorman of the street railway car, in which plaintiff was riding), and without guarding the construction track by gates or giving adequate danger signals.

The statute prescribes an audible signal to be sounded by every engine approaching a grade crossing of a highway, beginning at a distance of 300 yards from the crossing. P. L. 1903, p. 603, § 35. An audible signal of such duration was rendered impracticable by the fact that the train in question started from a point much less than 300 yards from the crossing. But this fact, while not dispensing with the giving of such audible signal as was practicable in the circumstances, tended to show that some precaution besides an audible signal was called for. For this reason, and because the evidence warranted a finding that the railroad company had itself created a situation of extraordinary danger at this crossing, the jury might very reasonably conclude that the exercise of reasonable care for the safety of travelers upon the street required the railroad company to employ a flagman, or install gates for the construction track. Penna. R. R. Co. v. Matthews, 36 N.J.Law, 531; D., L. & W. R. R. Co. v. Shelton, 55 N.J.Law, 342, 26 Atl. 937.

It appears that the...