Quinn v. W. Jersey & S. R. Co.

• Decision Date: 30 November 1909
• Parties: QUINN v. WEST JERSEY & S. R. CO.
• Court: New Jersey Supreme Court

74 A. 456

78 N.J.L. 539

QUINN

v. WEST JERSEY & S. R. CO.

Court of Errors and Appeals of New Jersey.

Nov., 1909.

(Syllabus by the Court.)

Error to Circuit Court, Atlantic County.

Action by John M. Quinn against the West Jersey & Seashore Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Bourgeois & Sooy, for plaintiff in error.

John W. Wescott, for defendant in error.

MINTURN, J. The plaintiff received his injuries under the following circumstances: On June 29, 1907, he drove with two children in his wagon to the station at McKee City to cross defendant's tracks on English Creek avenue, which tracks run north and south. On the westerly side of the track is the station which is distant about 28 feet north of the avenue and within the usual distance of such structures from the track. The plaintiff, driving westwardly, crossed the tracks, approached the station, turned his horse to the right along the platform at the southerly, and waited for the approach of the down train, upon which he expected his mother. She having failed to arrive upon the train, the plaintiff prdcured his mail and remained sitting in his wagon, perusing the correspondence, after which he started to leave, and turned the horse's head to the left, immediately behind the station, and drove into English Creek avenue back of the station in an easterly direction. At this point his conduct, as testified to by himself, was as follows: "I pulled up and started my horse's head about three feet from the track, or a little more, and looked up and listened and didn't hear anything, and couldn't see anything, for the station was in the road there. It is built up to the track. There was a pole there which obstructed the view to the right at the end of the platform, and there is also an alcove in front of the station of about three feet or so." He testified he could see up the track about 300 feet when he was about 8 feet from the track, but upon cross-examination concluded that the vision might be limited to 150 feet. He, however, drove to within 3 feet of the track, from which point he could see from 100 to 200 feet. and. looking and seeing no train, drove on. He then took out his whip as he started to cross the track, but, when almost over the last rail, he suddenly espied an electric train coming, and thereupon whipped up his horse; but, before the wagon could clear the track, it was struck by the train, and the plaintiff was thrown out by the impact,...