Precodnick v. Lehigh Valley R. Co.

• Decision Date: 04 March 1907
• Citation: 74 N.J.L. 566,65 A. 1047
• Parties: PRECODNICK v. LEHIGH VALLEY R. CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

65 A. 1047

74 N.J.L. 566

PRECODNICK

v. LEHIGH VALLEY R. CO. OF NEW JERSEY.

Court of Errors and Appeals of New Jersey.

March 4, 1907.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Pauline Precodnick, administratrix of Samuel Precodnick, against the Lehigh Valley Railroad Company of New Jersey. Judgment for defendant, and plaintiff brings error. Affirmed.

Herbert Clark Gilson, for plaintiff in error. Collins & Corbin, for defendant in error.

VROOM, J. The plaintiff's intestate was employed by the defendant as a track repairer and was a member of a gang of 10 or 12 men who were working on the east side of a highway bridge near Park View, N. J. During the morning of the accident, Precodnick had been sent by the foreman to a point on the west side of the bridge, 225 feet west therefrom, to assist a signal and repair man there. The bridge was 100 feet wide. The train that ran down the deceased had passed over the track on which the men were working some 10 minutes before the accident. It was going east on the east-bound freight track. A passenger train was following it, so it pulled clear on the switch, and allowed the passenger train to pass. After stopping for 10 minutes, the conductor of the freight inquired of the foreman of the gang if it was all right to come back, and, on being informed that it was, he then gave the signal for the train to come back, and the engineer blew three long whistles, a reply to the conductor that he saw the signal. The train was backing, and was going from six to eight miles an hour when it got to the bridge. It passed the foreman and other men on the easterly side of the bridge, and when the caboose got to the bridge the conductor and foreman saw the deceased in the center of the track between the rails, and they and the other men tried to give him warning. He was standing on the east-bound track with his back to the approaching train, while a train going west on the adjoining track had passed the backing train. The deceased took no notice of the warnings given to him by the conductor and the men working on the east side of the bridge, and probably he did not hear them, owing to the noise made by the other train on the west-bound track. He was struck by the backing train and killed. It further appeared in the case that it was the custom, when a man is separated from the gang he is working with, and sent out by himself, that he is supposed to look out for his own safety. At the close of the plaintiff's case, a motion to nonsuit was made and refused by the trial judge; but, at the close of the case, a motion was made for the direction of a verdict for the defendant, upon the ground that it then appeared affirmatively that there was no negligence on the part of the defendant, and that the deceased had assumed the risks and was guilty of contributory negligence. This motion was granted, upon the ground that there was no evidence of negligence on the part of the defendant.

The contention on the part of the plaintiff was that the duty of the defendant to the deceased, in the exercise of reasonable care to secure the safety of the deceased, required that it give a careful, timely, and adequate warning of the approach of trains, in order that the dangers necessarily incident to the employment might not be increased, and that the deceased did not assume as a risk of his employment negligence on the part of the defendant in securing his safety by adopting and maintaining a safe system of warning of the approach of...