Schnackenberg v. Delaware. L. & W. R. Co.

• Decision Date: 30 November 1914
• Citation: 93 A. 701,86 N.J.L. 517
• Parties: SCHNACKENBERG v. DELAWARE. L. & W. R. CO.
• Court: New Jersey Supreme Court

93 A. 701

86 N.J.L. 517

SCHNACKENBERG

v. DELAWARE. L. & W. R. CO.

Supreme Court of New Jersey.

Nov. 30, 1914.

Appeal from Circuit Court, Essex County.

Action by Henry Schnackenberg, by Richard Schnackenberg, next friend, against the Delaware, Lackawanna & Western Railroad Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Argued June term, 1914, before THE CHIEF JUSTICE and GARRISON and MINTURN, JJ.

Frederic B. Scott, of New York City, for appellant. Louis Hood and William K. Flanagan, both of Newark, for appellee.

MINTURN, J. The suit was for personal injuries received at a railroad crossing on Harrison street, in East Orange. Plaintiff was driving a one-horse bakery wagon, while it was quite dark, about 5 o'clock in the morning on January 25, 1913. He was familiar with the crossing, as his duties required him to pass over it every morning about the same time, a course he had followed for five months immediately preceding this accident. There were no noises or disturbances at the time to interfere with his sense of hearing. He was driving slowly, and stopped, looked, and listened when he arrived at a point opposite a garage about 30 feet from the tracks. He says he could see from that point a distance of 400 feet in the direction from which the engine which struck him came. There was nothing between the garage and the track, except occasional telephone poles, and the darkness of the morning, to obstruct his view. Having made his observations he started his horse on a walk, still looking east and west, and the nearer he approached the track the greater was the scope for observation. He heard no bell or whistle, and says he did not see the engine, which carried a strong headlight, until his horse was upon the track, and the engine was practically upon him, killing his horse and injuring him. This statement presents the plaintiff's version of the accident, and in our judgment it clearly convicts him of contributory negligence.

There are cases such as Napodensky v. W. J. & S. R. R. Co., 88 Atl. 1033, relied upon by the plaintiff, which present the injured party in the status of a man who, having exercised the care and caution which the law requires in approaching a crossing, suddenly finds himself, without fault, upon his part, in a zone of danger, and in an unsuccessful effort to extricate himself is injured, but this case lacks the main essential preliminary which distinguishes those adjudications, i. e., the...