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

• Citation: 55 N.J.L. 342,26 A. 937
• Court: United States State Supreme Court (New Jersey)
• Decision Date: 23 June 1893
• Parties: DELAWARE, L. & W. R. CO. v. SHELTON.

26 A. 937

55 N.J.L. 342

DELAWARE, L. & W. R. CO.

v. SHELTON.

Court of Errors and Appeals of New Jersey.

June 23, 1893.

(Syllabus by the Court.)

Error to supreme court.

Action by Charles H. Shelton against the Delaware, Lackawanna & Western Railroad Company. Plaintiff had judgment, and defendant brings error. Affirmed.

This case was tried before Justice Depue and a jury at the September term, 1892, of the Essex circuit.

The horse and buggy of the plaintiff was in charge of his driver, and was injured by being run over by the locomotive of the railroad company at the Grove street crossing in Montclair. This suit was brought for damages thus occasioned. A verdict having been rendered for the plaintiff, and judgment entered thereon, a writ of error was brought to this court.

Flavel McGee, for plaintiff in error.

Edward M. Colie, for defendant in error.

LIPPINCOTT, J. On the night of January 8, 1891, shortly after 10 o'clock, a collision occurred between a locomotive of the Delaware, Lackawanna & Western Railroad Company and a horse and buggy belonging to and driven by a servant or driver of the plaintiff, at the Grove street crossing in Montclair. The plaintiff is a physician in Montclair, and, after leaving him at his residence, his driver was taking the horse and buggy to the stables, and in crossing the railroad track of the defendant this accident occurred. At the conclusion of the evidence on the part of the plaintiff, counsel for defendant moved for a nonsuit, on the grounds that no negligence by the defendant occasioning the injury had been shown, and that the injury was attributable to the negligence of the driver of the plaintiff. This motion was refused, and the exception to this ruling constitutes the first objection to the judgment. It is not practicable to state the evidence here, but from an examination of it there would appear to be sufficient for fair debate as to conclusions in relation to both these questions, and this was the view taken by the judge in refusing this motion. It was shown, as the driver approached this crossing, no whistle of any approaching locomotive was heard, no bell or other signal was heard, and the gates on both sides were open. It was shown that a flagman was stationed there to lower the gates as trains passed by; that the flagman was not there on the night in question. It appeared that the duties of the flagman ceased at a quarter past 9 o'clock, and that after that hour the gates were always left open. After that hour no flagman was stationed there. It also appeared that on the street along which the driver came the view of the track was more or less obstructed by buildings; that close along the side track a fence had been constructed by the railroad company, some 4 or 5 feet high at the street, running back to a height of about 9 feet about 50 feet from the crossing; and that on the night when the accident occurred there was a car standing on the side track west of that upon which the locomotive approached the crossing, which to some extent prevented a view of the track. After the accident, and before the trial, the driver went away, and could not be obtained for the trial, but it appears from the evidence that at some distance away from the crossing he slowed the horse down to a walk; that no bell, whistle, or other signal of an approaching train was heard; that, it was not probable that an approaching train could be seen from the point of view along which the driver approached; that the gates were up; that the driver slowly approached the track, went on it, and was caught there by the locomotive, which suddenly came upon him without any signal. Now, these appear to be the main facts, with the attending circumstances of the collision. The judge concluded that the evidence presented questions for the determination of the jury, and I think the farts in proof sustain his conclusion.

The rule which must govern in this class of cases is well stated in Railroad Co. v. Matthews, 36 N. J. Law, 531, which was a decision of this court. It was held in that case that "it is sufficient for all useful purposes to say that where the evidence on the subject is open to debate, and leaves the mind in a state of some doubt on this question whether the driver of the horses which were destroyed exercised or not that degree of care which his legal duty exacted. This being the case, the judge would not have been justified in taking this question from the jury. Such a course is proper only when the absence of caution is apparent, and is in reason indisputable." Railroad Co. v. Righter, 42 N. J. Law, 186. And the same rule applies to the question whether there existed actionable negligence on the part of the defendant, (Bonnell V. Railroad Co., 39 N. J. Law, 189;j and where two inferences can be reasonably drawn from the evidence upon questions of negligence a case is presented which calls for the opinion of a jury, (Bahr v. Lombard, 53 N. J. Law, 233, 21 Atl. Rep. 190, and 23 Atl. Rep. 167; Baldwin v. Shannon, 43 N. J. Law, 596.) This exception is not sustained.

At the close of the evidence the judge was requested by the defendant to direct the jury to return a verdict for the defendant on the same grounds upon which the motion to nonsuit was made. Now if, upon the whole case, there is evidence which in any way tends to establish the plaintiff's cause of action or the defense, it is erroneous for the court to direct a verdict, and it is only when the facts proved clearly fail either to establish a cause of action or a sufficient defense that the court can properly direct the jury as to their verdict. I think all the authorities concur in the principle that the court cannot direct a verdict when any fact the parties have been permitted to introduce, material to the verdict, one way or the other, is in dispute. The...