Smith v. Atl. City R. Co.

• Decision Date: 17 June 1901
• Citation: 66 N.J.L. 307,49 A. 547
• Parties: SMITH et ux. v. ATLANTIC CITY R. CO.
• Court: New Jersey Supreme Court

49 A. 547

66 N.J.L. 307

SMITH et ux.

v. ATLANTIC CITY R. CO.

Court of Errors and Appeals of New Jersey.

June 17, 1901.

(Syllabus by the Court.)

Error to supreme court.

Action by Charles B. Smith and wife against the Atlantic City Railroad Company. Judgment for plaintiffs. Defendant brings error. Affirmed.

J. Willard Morgan and Charles V. D. Joline, for plaintiff in error.

Howard Carrow, for defendants in error.

HENDRICKSON, J. This writ is brought to review the ruling of the trial judge of the Camden circuit in a suit brought by Charles B. Smith and Marion, his wife, against the defendant company. The claim is for damages resulting from personal injuries to the wife, caused by her being struck by a descending safety gate while crossing the railroad tracks of the company where they intersect with Second street, near Kaigns avenue, in the city of Camden. The accident occurred about 9:30 o'clock in the daytime, on March 19, 1900. The injured plaintiff was walking along one of the sidewalks of Second street, which runs north and south, with the purpose of visiting a neighbor. She had passed the northerly safety gate, which was open, and was struck upon the back of the head and neck by the southerly gate, just as she reached the end of the crossing, and was quite seriously injured. The principal assignment of error is based upon the refusal to nonsuit at the close of the plaintiff's case. The ground of the motion, as stated, was contributory negligence on the part of the plaintiff.

To sustain an exception to such a refusal to nonsuit, it must be clearly established, from the facts and circumstances developed in the plaintiff's case, that her failure to exercise ordinary or reasonable care proximately contributed to the injury complained of. If, upon the facts proven, the question of contributory negligence is a fairly debatable one, it must be submitted to the jury. Railroad Co. v. Righter, 42 N. J. Law, 180; Bonnell v. Railroad Co., 39 N. J. Law, 189; Railroad Co, v. Middleton, 57 N. J. Law, 154, 31 Atl. 616, 51 Am. St. Rep. 597; New Jersey School & Church Furniture Co. v. Board of Education of. Somerville, 58 N. J. Law, 646, 35 Atl. 397.

It can hardly be said that plaintiff was negligent in entering upon the crossing when the gates were up. It has been held by this court that when a person is about to cross a railroad track where he knows that a flagman is habitually stationed, and finds that he is not at his post, giving a signal of danger, the traveler has a right to presume that a train is not about to pass. Berry v. Railroad Co. (N. J. Err. & App.) 4 Atl. 303. The fact that the gates are open is held to be an invitation to cross, and an assurance that the track can be crossed in safety. 3 Elliott, R. R. § 1157. But, notwithstanding this, the traveler must still exercise reasonable care in crossing, as is held in that case and in the authority cited And the contention is that the plaintiff, while passing over the crossing, being in a place of danger, should have looked both for the approach of a train and at the gates, which were liable to be lowered upon its approach; and she did not look for the train, nor at the gates, or, looking, saw, but did not heed. But the contention is scarcely justified by the facts. When asked if she looked right ahead all the time when crossing, she replied, "Well, I suppose I did; I don't know that I looked around." When asked if she noticed any train coming, her reply was, "I did not see nor hear any train; I couldn't say whether there was or not." It appears further in the testimony that there was a wagon coming across north as she was going south. It was also developed in the evidence that she received no warning from anybody that the gates were coming down. Another witness testified that the gates were up when the plaintiff passed upon the crossing; that as she reached the last rail the gates descended upon her, striking her upon the head; and that he heard no bell ring as the gates were lowered. It should be remembered also that the gates, when open, stood perpendicular. It will thus be seen that there were several things to naturally draw plaintiff's attention while she was crossing. It was her duty to look and listen for the train.

Whether she did this or not is somewhat debatable. She might also look for approaching vehicles about to cross, and at the tracks over which she had to walk, to see if her way was clear and safe. It is contended that, in addition to observing her other surroundings, she should have been looking at the gates; that she should be charged with the same duty respecting the descending gates as she would be charged with respecting an approaching train. This...