Record v. Pa. R. Co.

• Decision Date: 02 March 1909
• Citation: 72 A. 62,76 N.J.L. 800
• Parties: RECORD v. PENNSYLVANIA R. CO. et al.
• Court: New Jersey Supreme Court

72 A. 62

76 N.J.L. 800

RECORD

v. PENNSYLVANIA R. CO. et al.

Court of Errors and Appeals of New Jersey.

March 2, 1909.

(Syllabus by the Court.)

Error to Supreme Court.

Action by George L. Record against the Pennsylvania Railroad Company and the Lehigh Valley Railroad Company. From a judgment of the Supreme Court (67 Atl. 1040) affirming a judgment of the trial court for plaintiff, defendants bring error. Affirmed.

Collins & Corbin, for plaintiff in error Lehigh Valley R. Co. Vredenburgh, Wall & Carey, for plaintiff in error Pennsylvania R. Co. Merritt Lane, for defendant in error.

VREDENBURGH, J. The plaintiff sued to obtain compensatory damages for injuries to his person and property received while he was traveling in his automobile at night in the public streets of the city of Newark. His injuries resulted from a collision with safety gates in the actual possession and charge of the defendants, which had been erected by them over a public highway that crossed their railroad tracks at the place of the collision. The particular nature of the negligence claimed against the defendants and shown by the evidence consisted in their failure to put lights, after dark, upon the gates lowered at the crossing, as they had theretofore lighted them, and the absence of which led the plaintiff to believe, as he insists, that the crossing was unobstructed by the gates, and hence his collision with them.

With the conclusions arrived at by the Supreme Court in its opinion filed below, affirming the judgment of the trial court against both defendants, we, in the main, agree, and, except for the reason next referred to, would deem it unnecessary to add any qualification of them; but the trial court had erroneously admitted in evidence, against the objection of the Lehigh Valley Railroad Company, a written agreement, purporting to have been jointly entered into by the two defendants relating to the construction and operation of the gates in question, produced in court by the Pennsylvania Railroad Company upon notice to it. While the record shows that this agreement was legally proved and admitted as affecting the Pennsylvania Company, it also shows that no proof was made of its execution by the Lehigh Valley defendant, and, since the Supreme Court affirmed the judgment of the trial court notwithstanding this error, we are called upon for an expression of opinion in respect to it. The Supreme Court, in disposing of this admittedly erroneous ruling of the trial court, seems to have regarded it as having been either cured or waived by the course of conduct pursued at the trial by the counsel of the last-named company, because, it is said, they made no request of the trial judge, after the paper had been properly introduced in evidence as against the first-named defendant, to exclude it from his consideration (he sitting as a jury) upon the question of the liability of the latter company. We, however, find it needless to determine whether or not this negative course adopted by counsel had the attributed effect, for we are satisfied that the responsibility of the Lehigh Valley Company for the negligent management of the gates can legally rest upon other grounds and without resort to the agreement. The trial court properly found, we think, under the weight of the evidence, that the gateman in charge of the gates had negligently failed to place and keep upon them warning lights on the night in question, and that, by force of the terms of the agreement, he was the authorized agent of the Pennsylvania Company in the operation of the gates; but it remains to be considered whether, without the aid of this instrument, he should be regarded as the agent of the Lehigh Valley Company in such operation.

An ordinance of the city of Newark (passed in the year 1902) required all railroad companies operating cars propelled by steam on or over the public streets of that city, except where single tracks were used, to erect, or cause to be erected, fences, together with a certain kind of gates, known generally as "safety gates," of a prescribed form, to be approved by certain city officers, at all points on their tracks where they wore crossed by any street of the city. The evidence sufficiently shows that the Lehigh Valley Railroad Company was one to which the conditions named in the ordinance applied, and it is not open to the least doubt but that after the passage of this city law it became at once the legal duty of that company to comply...