Pennsylvania Railroad Company v. Leary

• Court: New Jersey Supreme Court
• Writing for the Court: ABBETT, J.
• Citation: Pennsylvania Railroad Company v. Leary, 29 A. 678, 56 N.J.L. 705 (N.J. 1894)
• Decision Date: 15 March 1894
• Parties: THE PENNSYLVANIA RAILROAD COMPANY, PLAINTIFF IN ERROR, v. WILLIAM LEARY, DEFENDANT IN ERROR

29 A. 678

56 N.J.L. 705

PENNSYLVANIA B. CO.

v. LEARY.

Court of Errors and Appeals of New Jersey.

June 27, 1894.

(Syllabus by the Court.)

Error to circuit court, Burlington county; before Justice Garrison.

Action by William Leary against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

S. H. Gray, for plaintiff in error. S. K. Robbins and John W. Westoott, for defendant in error.

ABBETT, J. On June 19, 1893, at half past 9 o'clock at night, William Leary, the plaintiff below, was driving two mules, hitched to an open market wagon on the Moorestown & Mt Holly Turnpike Road. The railroad of defendant below crosses this highway at what is known as the "Long Crossing." This turnpike, before it reaches the crossing, runs "quite near" to, and almost parallel with, the railroad, for at least half a mile. As it reaches the place of crossing, the turnpike turns to cross the railroad. During this half mile, according to the testimony of Leary, there is nothing between the turnpike and the railroad which would prevent any one who was traveling along the turnpike road, and who looked towards the railroad, from seeing the railroad; and he said, "If there was any train on the railroad, you could see the train on the railroad, if you looked towards it." The night was "a dark, drizzly night; wind blowing from the east." He was also traveling towards the east, and had blankets thrown over him to protect him from the storm. He was driving the team "a little faster than an ordinary walk at the time." The train "was coming from towards Philadelphia, and running eastward." He therefore had his back to the approaching train until he got on the crossing, and then, as he turned to cross the railroad at Long Crossing, his left side was towards the train. Leary testified: "When I got within reasonable distance [this, he afterwards states, was within 15 or 20 yards of the crossing] for taking precaution for this railroad, 1 took precautions; merely just turning my head, knowing that it wasn't train time. But I took a slight precaution, brought the team up, and saw nothing but an electric light." He did not stop the team entirely, but just pulled the team up to a slow gait, so he could stop it if he heard any noise. He then heard no noise, and decided that there was no train there, and drove on, and "nudged the team up," and proceeded to cross the railroad. He was right on the railroad track with his team when he heard the...