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

• Decision Date: 17 November 1913
• Parties: NAPODENSKY v. WEST JERSEY & S. R. CO. SHAPIRO v. SAME.
• Court: New Jersey Supreme Court

88 A. 1033

85 N.J.L. 336

NAPODENSKY

v. WEST JERSEY & S. R. CO.

SHAPIRO

v. SAME.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1913.

(Syllabus by the Court.)

Appeal from Supreme Court.

Two actions, one by Max Napodensky, the other by Jacob Shapiro, both against the West Jersey& Seashore Railroad Company. From judgments for plaintiffs, defendant appeals. Affirmed.

Bourgeois & Coulomb, of Atlantic City, for appellant.

Wescott & Wescott, of Camden, for appellees.

MINTURN, J. While driving a horse that he hired from the plaintiff Jacob Shapiro, which was hitched to an open wagon, across the tracks of defendant's railroad on Lincoln avenue, in Woodbine, Max Napodensky, the other plaintiff, a man about 70 years of age, was struck by a train, the horse was killed, the wagon destroyed, and the plaintiff was injured, for which loss and injury these two suits were instituted against the defendant by the respective plaintiffs, and a verdict obtained in each suit.

The track was single, and there was an electric alarm bell at the crossing. Eight or ten feet from the track on the left-hand side as plaintiff crossed were coal sheds and a railroad siding extending in the direction of the station, upon which stood some of defendant's cars. The testimony of the plaintiff was that he was familiar with the crossing, and that as he approached it he stopped his horse and listened for approaching trains. Hearing no alarm from the crossing bell and no sound to indicate the approach of a train, the plaintiff urged on his horse and met with the accident. If this situation presented the true state of facts, the plaintiff was entitled to recover, since nothing in this concatenation of facts speaks of contributory negligence or reflects the exercise of due care upon the part of the defendant. The defendant met this situation by testimony in direct contradiction thereof and contended that, from the facts going to make up the plaintiff's case, his negligence was a contributing factor in the case and barred recovery. It is also urged that he must have seen the train had he looked, since he had an unobstructed view of a thousand feet along the track, in the direction in which the train was coming. It is probable that such would have been the case if there had been no obstruction upon the siding, which the plaintiff testified was the fact. This being the situation, the question for the jury to settle was whether in the environment thus created, which presented a crossing with the view obstructed, a signal bell not ringing, the absence of any signal to indicate an approaching train, the absence of gates and a flagman at the crossing, and a horse upon which the plaintiff was required to devote some attention, the plaintiff was guilty of contributory negligence. v. P. R. R., 55 N. J. Law, 596, 27 Atl. 931.

Negligence is not an ex cathedra pronouncement with which an act may be arbitrarily branded in the abstract as the judicial eye may conceive it. It presents a concrete proposition for a jury to solve, where the facts vary, as narrated by opposing witnesses, and from which different minds may conjecture differently, as they may view the conduct of a man in a difficult or trying situation, harassed and confused in the...