Piver v. Pa. R. Co.

• Decision Date: 16 November 1908
• Citation: 71 A. 247,76 N.J.L. 713
• Parties: PIVER v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

71 A. 247

76 N.J.L. 713

PIVER

v. PENNSYLVANIA R. CO.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1908.

(Syllabus by the Court.)

Error to Circuit Court, Camden County.

Action by Elijah Piver against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Gasklll & Gaskill, for plaintiff in error.

Matthew Jefferson and John W. Wescott, for defendant in error.

TRENCHARD, J. The plaintiff, Elijah Piver, while driving on Fourth street, in the city of Camden, was thrown from his wagon while crossing the tracks of the Pennsylvania Railroad Company where they intersect that street, and was injured. This suit was brought to recover compensation for such injuries. The plaintiff bases his right to recover upon the allegation that the accident was due to the failure of the railroad company to keep in proper repair the passageway over its tracks. The trial of the case resulted in a verdict and judgment in favor of the plaintiff, and the present writ of error brings up that judgment for review.

The assignments of error upon which defendant chiefly relies are based upon exceptions to the refusal of the trial judge to nonsuit the plaintiff, and to direct a verdict on the ground that there was no negligence upon the part of the defendant company. When the motion to nonsuit was refused, the evidence justified the jury in finding the following matters of fact: That the plaintiff was driving in a wagon down Fourth street upon the trolley tracks laid in that street, when he came to the railroad crossing, and, as he was passing over one of the three parallel tracks laid there, one of the feet of his horse became fast between the rail and a plank, causing the animal to fall. The sudden checking of the wagon threw the plaintiff to the ground, and injured him. When this case was formerly here for review (Piver v. Pennsylvania R. Co., 74 N. J. Law, 619, 67 Atl. 109), the testimony then before the court failed to show where or in what manner the horse's foot was caught, and, in view of the testimony on the part of the defendant, was held to be insufficient to support a finding of any neglect of duty on the part of the defendant company in maintaining in good repair a proper passageway over its railroad tracks. But the evidence now before the court, chiefly by reason of the witness Thompson's testimony, is different from that produced at the first trial, and supports the theory of the plaintiff that the horse's hoof was caught in a hole in the crossing between a plank and the rail resulting from want of proper repair.

The plaintiff in his testimony says: "My horse got his foot fast and threw him. * * * That pitched me forward. I went over the horse's head. * * * As soon as I could possibly get up, I got up, and the horse was lying on his side. * * * The next thing I saw was a man with a crowbar prying the horse's foot out from where it was fast there." He was then asked: "Q. Did you notice how it was that your horse's hoof was caught? A. No, sir; I couldn't say positive how his foot was. His foot was down in between two somethings, but I couldn't say positive what."

The witness Thompson (not produced at the former trial) testified as follows: "Q. Where were you standing? A. I was at the house at the time, and I went to the window, the side window, and I seen that the horse was down there at the track. * * * Q. Then what did you do? A. I went over to assist him, and I went over and got hold of the horse's head, and held the horse's head down so he would not get up, and while I was holding the horse's head a man went after a crowbar to get the horse's hoof out of the track. Q. Now, where was the horse's hoof fastened? A. It was caught. Here is the track here, and here is the plank, and the horse's hoof was down, half way down. Q. Between the track and the plank? A. Yes, sir. Q. Now, how was the horse's hoof pried out? A. It was pried out with a crowbar. * * * Q. Did you notice what condition the...