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

• Decision Date: 10 November 1893
• Citation: 27 A. 919,56 N.J.L. 34
• Parties: MATTHEWS v. DELAWARE, L. & W. R. CO. et al.
• Court: New Jersey Supreme Court

27 A. 919

56 N.J.L. 34

MATTHEWS

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

Supreme Court of New Jersey.

Nov. 10, 1893.

(Syllabus by the Court.)

Case certified from circuit court, Essex county, for advisory opinion.

Action for personal injuries by Silas Matthews against the Delaware, Lackawanna & Western Railroad Company and the Newark Passenger Railway Company. After verdict for plaintiff against one defendant only, the case was certified to the supreme court. Judgment on the verdict.

The other facts fully appear in the following statement by MAGIE, J.:

Matthews, the plaintiff, brought an action of tort in the Essex circuit against the defendants to recover damages for an injury received in a collision between a locomotive of the railroad company and a car (in which he was a passenger) of the railway company. There was a verdict in favor of the railway company and against the railroad company. The railroad company obtained a rule to show cause why the verdict against it should not be set aside. Plaintiff obtained a rule to show cause why the verdict in favor of the railway company should not be set aside. The rules were consolidated and certified to this court for its advisory opinion.

Argued June term, 1893, before the CHIEF JUSTICE, and DIXON, MAGIE, and GARRISON, JJ.

R. Wayne Parker, for plaintiff.

Flavel McGee, for defendant Delaware, L. & W. R. Co. Samuel Kalisch, for defendant Newark Pass. Ry. Co.

MAGIE, J. Counsel for the railroad company first urges that the verdict finding it to have been negligent was not supported by evidence, or was contrary to the weight of evidence. It is unnecessary to review in detail the case. The discussion of counsel was thorough and exhaustive, and much consideration has been given to the evidence. The conclusion reached is that there was evidence of the neglect of the railroad company to give due notice of the approach of its train sufficient to go to the jury, and, although there was much opposing evidence, it did not so preponderate as to require or justify a new trial on this ground.

It is next claimed that the verdict awarded excessive damages. The amount awarded was large, but, considering the proofs of injury, it was not so large as to indicate mistake or misconduct on the part of the jury. The verdict ought not to be disturbed on that ground.

It is lastly contended in behalf of the railroad company that the verdict against it should be set aside, because there was no proof of joint negligence on the part of the two defendants. The claim is, as I understand from the argument, that these defendants cannot be jointly sued for an injury occasioned by such a collision, unless the neglect which caused the collision was of a joint duty owed by both defendants and that, on failure of proof of a joint duty and joint neglect, neither defendant can be held. If this contention is sound, it is obvious that the declaration was demurrable for it charged that the railroad company owed to plaintiff a duty to give notice of the passage of its trains across the tracks of the railway company, and that the railway company owed to him a duty to take precautions in carrying him across the tracks of the railroad company, and it averred that each company had neglected to perform the several duties thus charged, and that thereby the collision which injured plaintiff occurred. But the contention is wholly inadmissible, and the declaration would plainly have been good on demurrer. The error arises out of a misconception as to the nature of a joint tort if two or more persons owe to another the same duty, and by their common neglect of that duty he is injured, doubtless the...