Santomasstmo v. N.Y., S. & W. R. Co.

• Decision Date: 12 November 1918
• Docket Number: No. 61.,61.
• Citation: 92 N.J.Law 10,105 A. 14
• Parties: SANTOMASSTMO v. NEW YORK, S. & W. R. CO.
• Court: New Jersey Supreme Court

105 A. 14

92 N.J.Law 10

SANTOMASSTMO

v. NEW YORK, S. & W. R. CO.

No. 61.

Supreme Court of New Jersey.

Nov. 12, 1918.

Action under the federal Employers' Liability Act by Francesco Santomassimo, administratrix of Francesco Di Pierro, deceased, against the New York, Susquehanna & Western Railroad Company. Verdict for plaintiff. On defendant's rule to show cause. Rule made absolute.

Argued February Term, 1918, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

George S. Hobart, of Jersey City, for the rule.

Ira C. Moore, Jr., of Newark, opposed.

GUMMERE, C. J. This was an action brought under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), to recover damages for the pecuniary loss sustained by the widow and children of Francesco Di Pierro, an employe of the defendant company, who was killed while in the performance of his duty as a trackwalker. The proofs showed that while the decedent was walking upon the east-bound passenger track of the defendant company, inspecting the rails, a passenger train approached him from the rear, and, as it approached, blew a warning whistle; that almost immediately after the whistle was blown the decedent stepped off the passenger track over onto the east-bound freight track, just in time to be struck by the engine of a freight train traveling thereon.

The trial resulted in a verdict for the plaintiff, the amount awarded being $3,500.

The first ground upon which we are asked to grant a new trial is that the verdict of the jury, which, of course, rests upon a finding by it that the defendant, or its servants, were negligent, was against the clear weight of the evidence.

We think that the jury was justified from the proofs submitted in finding the following facts: (1) That it was the custom in the operation of the defendant company's trains to give a warning signal, consisting of several short blasts of the whistle, whenever anybody, whether an employe or stranger, was seen walking on the track in apparent unconsciousness of the approach of a train. (2) That Di Pierro was unconscious of the approach of the passenger train from his rear until the engineer of that train blew the warning signal. (3) That this signal was not given until the passenger train was so close to Di Pierro that he was compelled to act almost automatically in leaving the passenger track in time to escape the danger of being struck by the passenger train; that is to say, without having time to consider or observe whether, in attempting to avoid the danger threatening from his rear, he would reach a place of safety, or a place of equal danger. If the jury found these facts, it was then for them to determine whether the engineer of the passenger...