Merkle v. The New York, Lake Erie and Western Railroad Company

• Court: New Jersey Supreme Court
• Writing for the Court: THE CHANCELLOR
• Citation: Merkle v. N.Y., L. E. & W. R. Co., 9 A. 680, 49 N.J.L. 473 (N.J. 1887)
• Decision Date: 15 March 1887
• Parties: SUSANNA MERKLE, ADMINISTRATRIX, PLAINTIFF IN ERROR, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, DEFENDANT IN ERROR. JOHN SCHWINGE, PLAINTIFF IN ERROR, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, DEFENDANT IN ERROR

9 A. 680

49 N.J.L. 473

MERKLE, Adm'x,

v. NEW YORK, L. E. & W. R. CO.

SCHWINGE

v. SAME.

Court of Errors and Appeals of New Jersey.

March Term, 1887.

In error to the supreme court.

Collins & Corbin, for plaintiffs in error.

Cortlandt & Wayne Parker, for defendant in error.

RUNYON, Ch. One of these suits was brought by John Schwinge to recover damages for the destruction of his property, a wagon and contents, by a collision with a train running upon the company's railroad, and the other by the administratrix of the person who drove the wagon for Schwinge at the time of the collision, and who was killed therein, for damages for such killing. The causes, with another for the damages for the killing, in the same accident, of a lad who was in the wagon at the time, and which cause went to a verdict, were all tried together. At the trial, at the close of the plaintiffs' principal testimony, the plaintiffs in the cases under consideration were nonsuited upon the ground that, according to the evidence, the driver of the wagon was guilty of contributory negligence. To reverse the judgment of nonsuit in those cases, the writs of error were brought. The driver of the wagon stopped to deliver goods at a store distant about 56 feet from the railroad track. After finishing that business he drove on (the horses upon a slow walk) towards and upon the railroad track, and he did not stop until the collision took place. After leaving the store, he could not see the...