Kelly v. Cent. R. Co. of N.J., 21.

• Decision Date: 30 September 1935
• Docket Number: No. 21.,21.
• Citation: 180 A. 767
• Parties: KELLY v. CENTRAL R. CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

180 A. 767

KELLY

v. CENTRAL R. CO. OF NEW JERSEY.

No. 21.

Supreme Court of New Jersey.

Sept. 30, 1935.

Action by Edward Kelly against the Central Railroad Company of New Jersey. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued January term, 1935, before BROGAN, C. J., and PARKER and BODINE, JJ.

William F. Hanlon, of New York City, for appellant.

Theodore D. Parsons, of Red Bank, for appellee.

PER CURIAM.

This action, brought under the Federal Employers' Liability Act (45 USCA §§ 51-59), resulted in a judgment for $18,500. The plaintiff was a bridge carpenter. It was admitted that he was engaged in interstate commerce at the time of the injury. The accident occurred near the defendant's Atlantic Highlands freight station, which adjoins the so-called Stone Church Branch freight track. Beyond this is the main tracks and several sidings. The train involved was a regular passenger train, slightly late, running on the main track at about twenty miles an hour in an easterly direction towards Atlantic Highlands. One hundred and thirty feet east of the freight station is Highland avenue, a public crossing. The passenger station is 423 feet east of the freight station. A whistling board is 1,324 feet west of Highland avenue. The accident occurred May 27, 1932, at about 9 o'clock in the morning (Standard time).

The plaintiff testified that having finished work at the piers, the foreman of the carpenter gang, in which he was working, told him to procure a flat push car and load the tools and some coal and take such articles to the work cars located some distance beyond the freight station on the spur track. The loaded car was pushed from the Atlantic Highlands pier down the tracks to a point about 150 feet past the freight station on the spur, where further progress was blocked by an oil car. Beyond and west of the oil car stood a number of other cars and the work cars. The gang took their tools and equipment and carried them to the work cars. Plaintiff started to procure a wheelbarrow to move trie coal and, while crossing the main tracks at the freight station to procure the wheelbarrow, was struck by a train. He testified to making observation before attempting to cross and to seeing nothing and hearing neither bell nor whistle. There was corroboration as to the failure of the train engineer to give the customary warning for a crossing. The engine crew, however, testified that the whistle and bell were rung at the appropriate time, as...