Nogrady v. Erie R. Co.

• Decision Date: 14 February 1929
• Docket Number: No. 64.,64.
• Citation: 144 A. 803
• Parties: NOGRADY v. ERIE R. CO. et al.
• Court: New Jersey Supreme Court

144 A. 803

NOGRADY

v. ERIE R. CO. et al.

No. 64.

Court of Errors and Appeals of New Jersey.

Feb. 14, 1929.

Appeal from Circuit Court, Passaic County.

Action by Elizabeth Nogrady, as administratrix ad prosequendum of the estate of Michael Nogrady, deceased, against the Erie Railroad Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Weinberger & Weinberger, of Passaic, for appellant.

Hobart & Minard, of Newark, for appellees.

The following opinion was prepared by former Justice MINTURN, 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.

MINTURN, J. The suit was instituted to recover damages by the plaintiff, as administratrix ad prosequendum of the estate of Michael Nogrady, her husband, who sustained injuries while attempting to board one of defendant's passenger trains at the Passaic City station, from which injuries he subsequently died. The suit comprehended the railroad and Walter Hunt, the engineer, as defendants. The trial resulted in a verdict for the defendants upon these salient facts. The train had come to a stop at the station, and remained in such a state while the passengers desiring to get on and off the train had been given that opportunity. According to the plaintiff's witnesses, the deceased attempted to board the train immediately before it resumed its trip by starting. This was evidenced by the fact that he had put one foot on the step and the other upon the platform while grasping the iron rail while the train was in motion. That situation also evinces that the starting signal had been given before the decedent attempted to board the train and that he attempted to board the train while it was in motion. There was nothing in the case that the decedent had given any signal of his intention to board the train, which could be communicated to those in charge of the train, thus obviating the possible dangers attending his act in time to prevent the occurrence of the accident.

The substantial allegation contained in the complaint was the alleged wrongful act, neglect, and default of the defendants in operating the train; but the essential act of negligence which was made the gravamen of the issue at the trial, and is now urged by way of exception to the charge as to the basis of the appeal, is the following instruction of the learned trial court, viz.: "The act of...