Lumley v. W. Jersey & Seashore R. Co.

• Decision Date: 30 April 1937
• Docket Number: No. 30.,30.
• Citation: 191 A. 792
• Parties: LUMLEY v. WEST JERSEY & SEASHORE R. CO. MOWERS v. SAME.
• Court: New Jersey Supreme Court

191 A. 792

LUMLEY

v. WEST JERSEY & SEASHORE R. CO.

MOWERS

v. SAME.

No. 30.

Court of Errors and Appeals of New Jersey.

April 30, 1937.

Syllabus by the Court.

1. It is the duty of a railroad company to use reasonable care to provide and keep in repair for public use a passageway across its tracks where they are crossed by a public highway, suitable to the locality in which the same is situated, so that public travel shall not be impeded thereby.

2. Evidence examined and held that it would have justified the jury in finding negligence of the defendant railroad which was the proximate cause of plaintiff's injury, and therefore the nonsuit was erroneous.

3. The case of Fielders v. North Jersey St. Railway Co., 68 N.J.Law, 343. 53 A. 404, 54 A. 822, 59 L.R.A. 455, 96 Am.St.Rep. 552, distinguished.

4. Contributory negligence is a defense and the burden of establishing it rests on the defendant.

HETFIELD, WELLS, and COLE, JJ., dissenting.

Appeal from Supreme Court.

Two actions, one by Samuel A. Lumley, administrator ad prosequendum of Edward A. Lumley, and the other by Lillian M. Mowers, administratrix ad prosequendum of Charles C. Mowers, against the West Jersey & Seashore Railroad Company. From a judgment of the Supreme Court affirming judgments of nonsuit entered by the county circuit court, plaintiffs appeal.

Judgments reversed and the record remitted to the circuit court for a new trial.

Walter S. Keown, of Camden (George D. Rothermel, of Camden, of counsel), for appellants. Starr, Summerill & Lloyd, of Camden (Alfred E. Driscoll, of Camden, of counsel), for respondent.

TRENCHARD, Justice.

These cases are here on appeal from a judgment of the Supreme Court affirming (by an equally divided court) judgments of nonsuit entered by the Salem county circuit court on the motion of the defendant railroad. The cases were tried together and were consolidated for the purpose of appeal, since they arise out of the same occurrence and present the same legal and factual questions.

The record discloses that the plaintiffs' intestates were employees of an expressman, and in pursuance of their duties as such employees were on one of his trucks which was traveling on Griffith street in the city of Salem, and were riding on the extended tailboard of the truck, when they were thrown off as the truck crossed the tracks of the defendant railroad, striking their heads on the ground and causing injuries from which they died shortly thereafter.

It appears that, at the point where they were thrown off, the defendant company maintained a railroad crossing over its tracks where they crossed Griffith street in a built up residential and industrial section of Salem; that the tracks had been authorized by an ordinance of the city, which ordinance, like paragraph 26 of P.L.1903, p. 659 (3 Comp.St.1910, p. 4231, § 26), imposed the duty on the defendant railroad to keep in repair such crossing so that public travel thereon should not be impeded thereby.

The motion for nonsuit was grounded upon the contentions: (1) No evidence of defendant's negligence, and (2) no evidence of negligence which was the proximate cause of injury to plaintiffs' intestates.

The trial judge nonsuited because he thought that "it had not been proved that the railroad company did anything or failed to do anything that could be considered the proximate cause of the accident." In so holding we believe the learned trial judge fell into error, for the testimony, as we see it, required the submission of the case to the jury.

The testimony, while conflicting in some particulars, nevertheless tended to show that the truck upon which plaintiffs' intestates were employed was proceeding along the highway at about 12 or 15 miles an hour; that they were riding on the tailboard which was designed to be, and was, supported straight out from the body of the truck by a chain which ran from the corner of the body across the tailboard to the sides of the truck and was fastened by a hook; that this appliance was in perfect condition and securely fastened immediately prior to the accident; that in passing over the crossing the chain, which supported the tailboard, became unhooked by reason of a "bump" or "bounce" or "jar" when the truck struck a hole or depression caused by the surface of the ground between the tracks having been worn away so that it left the rails of the track "sticking up 3 or 4 inches" from the road's surface; that the immediate result of the unhooking of the chain was that the plaintiffs' intestates were thrown to the ground and killed; that such crossing had been in such defective condition for a year and upwards; that immediately after the accident the appliance designed to support the tailboard was in perfect condition, except that it had been unhooked in passing over the crossing.

We think that this testimony...