Samkiwicz v. Atl. City R. Co.

• Decision Date: 20 November 1911
• Citation: 82 N.J.L. 478,81 A. 833
• Parties: SAMKIWICZ v. ATLANTIC CITY R. CO.
• Court: New Jersey Supreme Court

81 A. 833

82 N.J.L. 478

SAMKIWICZ

v. ATLANTIC CITY R. CO.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1911.

(Syllabus by the Court.)

Error to Circuit Court, Atlantic County.

Action by Peter Samkiwicz against the Atlantic City Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

J. Willard Morgan and C. V. D. Joline, for plaintiff in error. Howard Miller, for defendant in error.

BERGEN, J. The plaintiff's foot was so crushed by defendant's car that an amputation became necessary, for which he brought suit and recovered damages. The case made by him justified the inference that in attempting to walk over the defendant's railroad at a highway crossing, his foot caught between the planking and the rail of the track, from which he was unable to extricate himself before a freight train, with the motive power at the end of the train farthest from him, was backed against him and his foot cut off; that the planking next to the rail was old, and the edges so worn as to allow plaintiff's foot to slip between the planking and the rail. It also appeared that although there were gates at the crossing, placed there by the defendant to be lowered when an approaching train intended to cross the highway, they were not lowered at the time the plaintiff undertook to cross the tracks; that no whistle was blown or bell rung to indicate the approach of this train; that, when the plaintiff undertook to cross, the train was about a quarter of a mile away from him; that he made every possible effort to loosen his foot as the train was approaching, and in this he was assisted by at least one other person, but their efforts were unavailing, and while the wheels of the first truck passed over his foot, the car was stopped before the wheels of the second truck reached him. With the record in this condition the defendant moved for a nonsuit which the trial court refused, and an exception was taken, upon which is rested the first assignment of error. While the railroad company has the right, when lawfully authorized, to cross a public highway with its rails, it must so construct its roadbed over the highway as not to unnecessarily interfere with its safe use by the public. Pennsylvania Railroad Co. v. Matthews, 36 N. J. Law, 531. Planking, or some other efficient material, must be placed between the rails where they cross a public highway, so as to afford to the public a sufficient method by which it may safely cross its rails.

It is the duty of every railroad company, controlling a right of way, to provide and keep in repair a safe and sufficient passageway across it, where any public highway shall cross the same, of such width and character as shall be suitable to the locality in which the same is situated, as required by "An act concerning railroads" (Revision of 1903) P. L. 1903, p. 645, § 26, and this implies that it be maintained in such condition as to be reasonably safe for public use, and when it appears that the edge of a plank, used to provide a crossing, is so worn as to permit the foot of a person crossing the same to slip between the worn plank and rail and hold the foot so that it cannot be released, by any reasonable effort, in time to avoid injury to it by a train passing along the rail, an inference may be drawn that the crossing was not in good order, and the question whether the company negligently omitted to maintain a safe crossing was one which should be submitted to the jury, and there was no error in the refusal to nonsuit. At the close of the whole ease the defendant moved that a verdict be directed for the defendant, but the plaintiff's case was not so shattered by the testimony offered by the defendant as to justify the allowance of this motion. The utmost that can be said regarding defendant's evidence is that it tended to contradict the testimony of plaintiff's witnesses, and therefore to which side credence should be given was essentially a jury question. The plaintiff in error in its brief, on this branch of the case, urges that there should have been binding instructions for the defendant, because Dickinson, one of its witnesses, a civil engineer, testified that the planking was neither old nor new; that the opening between the planking and the rail was the regulation opening; that there was some wear to it, but that it was nearly square. In this he was corroborated by two other witnesses. Another witness, Clark, testified that there was a little rounding on the edge of the planking; that it was worn slightly—that is, it was slightly rounded on the edge, and that there was no danger that a person would get his foot caught if he walked straight ahead. The plaintiff's case showed that his foot was caught side-wise between the rail and the plank, and the defendant urges that this could not have happened if he had walked straight across the track.

We do not think that any conclusive inference of contributory negligence can be drawn from this testimony. The testimony is that the plaintiff was walking straight across, and it is not denied that his foot was caught, and a jury might, we think, fairly find from the evidence that the condition of the planking was such as to throw the foot lengthwise between the defective plank and the rail. We find no error in the refusal to direct a verdict.

The only other assignment of error argued, and that is presented in the supplemental brief for the plaintiff in error, is the seventh. The court was asked to charge "if the jury believe that he went under the gates after the gates were down, he took all chances of the injury and cannot recover."

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