Pa. R. Co. v. Pfuelb

• Decision Date: 07 June 1897
• Citation: 60 N.J.L. 278,37 A. 1100
• Parties: PENNSYLVANIA R. CO. v. PFUELB.
• Court: New Jersey Supreme Court

37 A. 1100

60 N.J.L. 278

PENNSYLVANIA R. CO.

v. PFUELB.

Supreme Court of New Jersey.

June 7, 1897.

(Syllabus by the Court.)

Error to circuit court, Essex county; Child, Judge.

Action by Barbara Pfuelb, administratrix of the estate of John Pfuelb, deceased, against the Pennsylvania Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Argued February term, 1897, before DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Vredenburgh & Garretson, for plaintiff in error.

Samuel Kalisch, for defendant in error.

VAN SYCKEL, J. This is a suit against the Pennsylvania Railroad Company and the Lehigh Valley Railroad Company to recover damages for causing the death of plaintiff's intestate at the railroad crossing at East Kinney street in the city of Newark by a passenger train of the Lehigh Valley road, running from New York westward on the track of the Pennsylvania road. There were gates at the crossing, operated by a gateman in the employ of the last-named company. The jury found in favor of the Lehigh Valley Company, and must, therefore, have concluded that the statutory signals were given by that company. The writ of error is prosecuted to review judgment against the Pennsylvania Company. Two of the plaintiff's witnesses testified that when they reached the gates at the crossing they saw a train approaching from the direction of Elizabeth on the east-bound track, and they waited until it had passed over the crossing. The gates were then up, and the deceased was on foot, five or six steps behind them. These witnesses then passed over the east-bound track in safety, and also over the west-bound track. The intestate followed them. He passed over the east-bound track, and was struck and killed on the west-bound track by the train from New York. There was also evidence from which the jury could have found that the decedent, on account of obstruction of the view by the east-bound train, could not see the train on the west-bound track until he reached the furthest rail of the east-bound track. This was the case as presented by the testimony of the plaintiff, and thereupon the counsel for the plaintiff in error moved to nonsuit the plaintiff below.

The trial judge properly ruled that the existence of the gates did not absolve the traveler from stopping, looking, and listening before he stepped upon the tracks, but he declined to grant the motion, because there was no evidence in the case to show that the decedent did not stop, look, and listen, and there was no proof of such circumstances and such a situation at the time of the accident as would make it obvious that the decedent must have failed to look and listen. The case being, then, bare of proof either way upon that subject, negligence of the decedent could not be presumed, and there was, therefore, no error in refusing to nonsuit. After the refusal of this motion, the defendant, on the trial, introduced testimony to show that by actual measurement upon the ground a person standing at the southeast gate, where decedent entered, could see the tracks towards New York for a distance of 2,285 feet, and in the opposite direction for a distance of 4,537 feet. The east-bound track is...