Muller v. W. Jersey & S. R. Co.

• Decision Date: 19 November 1923
• Citation: 122 A. 693
• Court: New Jersey Supreme Court
• Parties: MULLER v. WEST JERSEY & S. R. CO.

122 A. 693

MULLER

v. WEST JERSEY & S. R. CO.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by George Muller against the West Jersey & Seashore Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bourgeois & Coulomb, of Atlantic City, for appellant.

Collins & Corbin, of Jersey City, for respondent.

The following opinion was prepared by the late Mr. Justice BERGEN, in compliance with the assignment to him. It clearly expresses the view of the court upon the matters involved in the litigation, and is adopted by the court as its own opinion in the cause.

BERGEN, J. The plaintiff was injured while driving an auto truck on a public highway, at a point where it crossed defendant's railroad tracks, and in attempting to cross the tracks plaintiff was struck by one of defendant's trains and injured, for which he brought this action, based on defendant's negligence, and recovered a judgment, from which defendant appeals. The principal ground of the appeal is that the court erroneously refused to direct a verdict for defendant because the truck had never been registered under the Motor Vehicle statute, and also that the driver had not obtained a driver's license as required by the same act and therefore the plaintiff was a trespasser on the highway, and the only duty of the defendant was to abstain from doing plaintiff a wanton injury.

The statute defining motor vehicles and providing for the registration of the same, and the licensing of the drivers thereof (P. L. 1921, p. 643), provides that no motor vehicle shall be driven on the highways of the state unless registered to do so. As plaintiff was driving an unregistered motor vehicle on a public highway, without having a driver's license, he was violating the statute above referred to, and subject to the penalties subscribed by it. But that does not justify the defendant in running him down by a negligent act, for the unlawful presence of the plaintiff on the highway was not the proximate cause of the accident. As was said by Mr. Justice Depue (later Chief Justice) speaking for this court in Del., L. & W. R. R. Co. v. Trautwein, 52 N. J. Law, 169, 19 Atl. 178, 7 L. R. A. 435, 19 Am. St. Rep. 442:

"In [all] collision cases on public highways, or at railroad crossings, the defense that plaintiff is debarred of his action on the ground of contributory negligence, for the reason that the wagon which he was driving did not conform to the statutory gauge, has never occurred to counsel, who are usually astute in discovering grounds of defense under the doctrine of contributory negligence. In my experience it has never been thought worth while to inquire in such cases as to the track of the wagon injured or destroyed in such a collision, and a defense on that ground would obviously receive no consideration."

In Shaw v. Theilbahr, 82 N. J. Law, 23, 81 Atl. 497, Mr. Justice Garrison, speaking for the...