Morris v. Atl. City R. Co.

• Decision Date: 20 October 1924
• Docket Number: No. 89.,89.
• Citation: 126 A. 295
• Parties: MORRIS v. ATLANTIC CITY R. CO.
• Court: New Jersey Supreme Court

126 A. 295

MORRIS

v. ATLANTIC CITY R. CO.

No. 89.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1924.

Appeal from Circuit Court, Camden County.

Action by John D. Morris against the Atlantic City Railroad Company. From judgment for defendant, plaintiff appeala Affirmed.

Wescott & Weaver, of Camden, for appellant.

French & Richards, of Camden, for appellee.

MINTURN, J. The night was dark and foggy when the plaintiff, the owner of two motor trucks, was proceeding slowly with them, about 2 o'clock a. m., along the Tansboro road, near Winslow Junction, en route from Atlantic City to Philadelphia. An experienced motorman familiar with the route from frequent usage, he drove his car slowly, and became aware of the presence of the railroad tracks, only when he reached the first track, and then too late to avert a collision with a freight train, which was occupying the crossing. No personal injury resulted, but the two trucks were materially damaged, and for that injury he instituted this suit, upon the theory that the defendant's employees should have been aware of the presence of the trucks, and should not have reversed or backed the train as they did after the collision actually had taken place. It was also contended that in view of the extraordinary weather conditions which prevented the plaintiff from obtaining a view much further than the hood of the trucks, the duty was imposed upon defendant of using extraordinary means of warning, commensurate with the situation. The plaintiff fully acquainted with the environment was aware that the crossing was unguarded, and possessed neither light, bell, nor gates, while the impenetrable fog enveloped and obscured everything along the route. The learned trial court nonsuited, following the rule prescribed in Madasky v. Public Service Co., 97 N. J. Law, 400, 117 Atl. 478, and Jacobson v. N. Y., S. & W. R. R, Co., 87 N. J. Law, 378, 94 Atl. 577.

The conspicuous fact in the case is that at the time the railroad train was in actual possession of the crossing, and that the plaintiff collided with the train, and not the converse situation usually presented. To sustain a verdict in such a status, it must reasonably appear that the damage resulted by reason of the nonperformance by the defendant of some duty imposed upon it by law. Kingsley v. D. L. & W. R. R. Co., 81 N. J. Law, 536, 80 Atl. 327, 35 L. R. A. (N. S.) 338; Pennsylvania R. R. Co. v. Matthews, 36 N. J. Law, 531.

In the absence of such a...