Raub v. Lehigh Valley R. Co.

• Decision Date: 01 July 1915
• Docket Number: No. 106.,106.
• Citation: 94 A. 567,87 N.J.L. 603
• Parties: RAUB v. LEHIGH VALLEY R. CO.
• Court: New Jersey Supreme Court

94 A. 567

87 N.J.L. 603

RAUB

v. LEHIGH VALLEY R. CO.

No. 106.

Court of Errors and Appeals of New Jersey.

July 1, 1915.

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Action by Lillian M. Raub, as administratrix, against the Lehigh Valley Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Alexander Simpson and Aaron A. Melniker, both of Jersey City, for appellant. Collins & Corbin, of Jersey City, for respondent.

PARKER, J. Plaintiff's intestate was head brakeman on a freight train of defendant company running between points in New Jersey and Pennsylvania, and in the course of his employment was killed by being struck on the head (as claimed by plaintiff) by an overhead bridge crossing the railroad, giving about three feet headroom above the cars. The suit was based on the federal act (Comp. Stat. 1913, par. 8657) making a common carrier by railroad engaged in interstate commerce responsible, as appellant's brief puts it, for the death of an employé occasioned by the negligence of the railroad company, while the company and the employé were both engaged in interstate commerce. The trial court directed a verdict for defendant, and this appeal is from that direction. The evidence as to the cause of death was purely circumstantial and rather meager, but it may be assumed for present purposes that a jury might lawfully have found that death resulted from deceased striking his head against an overhead bridge at a place called Coplay, in the state of Pennsylvania, on the evening of July 4th, after dark. The evidence showed that he had made that run twice a day for some months previously.

It is conceded that the existence of negligence on the part of the railroad company is essential to a recovery, as the case does not fall within any of the statutory requirements as to standard appliances, etc. Therefore, if there was no legal evidence tending to show that the defendant violated or omitted to perform some legal duty that it owed to the deceased, the verdict was properly directed.

The complaint charges that the defendant "constructed and maintained" the bridge. But of this there is no proof whatever. All that the case shows is the contemporaneous existence of the railroad and the bridge over it. There is nothing to show that the bridge had any connection with the operation of the railroad, and we must assume, in the absence of evidence, that it was there to carry a road over the railroad, and, on the assumption favorable to the defendant, that the road was a highway. Still further, there is nothing to indicate whether the assumed highway or the railroad was laid first; it may well have been the railroad. There is nothing to show that, by the law of Pennsylvania, the railroad company could require such highway, when laid across its tracks, to...