Rhodehouse v. Dir. Gen. of Railroads

• Decision Date: 18 November 1920
• Citation: 111 A. 662
• Parties: RHODEHOUSE v. DIRECTOR GENERAL OF RAILROADS.
• Court: New Jersey Supreme Court

111 A. 662

RHODEHOUSE

v. DIRECTOR GENERAL OF RAILROADS.

Supreme Court of New Jersey.

Nov. 18, 1920.

Action by Josephine E. Rhodehouse, administratrix ad pros, of William J. Rhodehouse, deceased, against the Director General of Railroads. On defendant's rule to show cause why verdict for plaintiff should not be set aside. Rule discharged.

Argued June term, 1920, before TRENCHARD, MINTURN, and KALISCH, JJ.

Collins & Corbin and George S. Hobart, all of Jersey City, for the rule.

Edward A. Markley, of Jersey City, and Griggs & Harding, and John W. Harding, all of Paterson, opposed.

KALISCH, J. The plaintiff's decedent was killed on December 26, 1919, while crossing the tracks of the Erie Railroad Company, at Hohokus Station, in Bergen county. An action by the plaintiff against the defendant to recover damages for negligently causing the death of the decedent resulted in a verdict for $25,000, in favor of the plaintiff.

The legal propriety of this verdict is questioned here under a rule to show cause obtained by the defendant why the verdict should not be set aside. The reasons presented by the counsel of defendant to that end are as follows:

1. That the trial judge erroneously refused to grant defendant's motions for a nonsuit and a direction of a verdict. Under this head it is argued in the brief: (a) That there was no evidence of negligence on part of the railroad company, (b) The plaintiff's intestate as a matter of law was guilty of contributory negligence, "(c) The plaintiff's intestate was a trespasser, or at most a mere licensee, and recovery is barred by virtue of the provisions of section 55 of the General Railroad Law [3 Comp. St. 1910, p. 4245]."

Before alluding to and discussing the other questions raised and argued in the defendant's brief, it will serve a logical purpose to first dispose of the defendant's several contentions which challenge the validity of the very fundamentals upon which the plaintiff's case rests.

If there is any testimony tending to prove negligence of the defendant, the plaintiff was entitled to have the case submitted to the jury and the granting of a nonsuit would have been error, unless it appeared on the plaintiff's case, by conclusive evidence upon which the minds of reasonable men could not reasonably differ, that the plaintiff's decedent was guilty of negligence whereby the injury was caused. Contributory negligence is a defense, and the burden of establishing it is upon the defendant. In the light of the testimony of the present case we think the question of decedent's alleged negligence was clearly one for the jury to settle, and therefore it would have been improper for the trial judge to have directed a verdict for defendant on that ground.

Was there any testimony which would warrant a jury in finding that the defendant was negligent, and that that negligence caused the decedent's injury and death? This requires a consideration of the facts upon which the plaintiff's claim is based. The defendant maintained passenger stations at Hohokus, for passengers to board trains of the defendant for New York City, and also trains going in the opposite direction. There were four tracks, running northerly and southerly. The two inner tracks were used for freight trains running northerly and southerly, respectively, and the two outer tracks running in the same directions, respectively, were used for passenger trains. The company's main station building stood on the east side of the tracks, where passenger tickets were sold, and on which side passengers boarded north-bound trains, and on the west side of the track, opposite the main station, the defendant maintained a shed for passengers who intended to board southbound trains. Between the platforms of the two stations and across the four tracks the defendant had put down planking for the use of passengers to go from one station to the other. This planked walk, as it is termed in the defendant's brief, is 48 feet long and 10 feet wide from the station proper or main station to the waiting shed on the opposite side, where passengers boarded trains going to Jersey City. There were two inter track fences of wire mesh, each 4 feet high and 700 feet long, one fence being erected beneath the north-bound passenger and northbound freight tracks, and the other was between the south-bound passenger and southbound freight tracks.

On either side of the planking, the passageway between the stations, there was a sliding gate in each fence which appears was open for passengers to pass through the gateway on the morning of the accident, and there is considerable testimony to the effect that those gates had been open for a period of two years, every morning, to permit passengers to go through to take the 6:43 train for Jersey City. It was undisputed that on the fence near the gate, and within a few feet of the place where decedent was struck, there was a sign, about 2 feet above the ground, 2 feet 6 inches long and 1 foot wide, containing two-inch letters in these words, "Gates are closed between 6:30 p. m. and 7 a. m." Which sign had been there for some time before the accident. It is, however, proper to state in this connection that there is no testimony explanatory of what was meant by the sign, or what its purpose was, or what was intended thereby. If the testimony of the witnesses who were commuters and who had occasion to take the 6:43 train every morning for a long period of time prior to the accident is credible, then it is clear that the actual practice of the defendant was to keep the gates open at that early hour to permit passengers to use the passageway for a south-bound train.

It was dark at that time in the morning. This darkness was somewhat increased by a mist. According to the testimony of some of the witnesses, it shortened the vision of approaching objects. At the point where the decedent was struck was a sharp curve of the tracks which extended southwesterly: the decedent had started to cross, a freight train had passed, and another freight train, with a large number of cars, was just passing, going between 30 and 40 miles an hour, making considerable noise, when an unlooked for and unscheduled engine, running between 25 and 30 miles an hour, rounded the curve, and running northerly on the most easterly track struck the decedent, causing his death.

There was...