State v. Young

• Decision Date: 08 September 1903
• Citation: 56 A. 471
• Parties: STATE v. YOUNG et al.
• Court: New Jersey Supreme Court

56 A. 471

STATE

v. YOUNG et al.

Supreme Court of New Jersey.

Sept. 8, 1903.

Prosecution for manslaughter against one Young and others. On motion to direct a verdict for defendants. Verdict directed accordingly.

The president, vice president, executive committee, general superintendent, superintendent for Essex county, assistant superintendent for Essex county, and roadmaster of the North Jersey Street Railway Company were indicted for manslaughter, for causing the death of Ernestina Miller at a grade crossing. The defendants asked for a bill of particulars. The principal specifications were: First, that the collision was occasioned by the inability of the employe to control the car as it approached the crossing, and the absence of a derailing switch; second, that the inability of the employe to control the movement of the car was due to the unclean condition of the tracks, and the crowded condition of the front platform of the car; third, that the condition of the street railway tracks was such as ordinary prudence could foresee, and ordinary care would have prevented; fourth, that a derailing switch was of established utility, in common use, known to the defendants, and a safeguard which ordinary prudence demanded; fifth, that, by virtue of the offices which they held, the defendants, and each of them, were charged with the duty of providing a safe road, safe conveyances, and safe methods for operating the cars of the said street railway company, and with the duty of supervising the equipment of the road, its methods of operation, and the performance by its officers, agents, and employes of their respective duties.

Chandler W. Riker, Prosecutor, Louis Hood. Asst. Prosecutor, Francis Child, and Edmund Wilson, for the State.

Richard V. Lindabury, George T. Werts, Joseph Coult, and James B. Vredenburgh, for defendants.

At the close of the case made by the state, the defendants' counsel moved the court to direct a verdict of acquittal. The motion was granted, and opinions were delivered orally as follows:

GUMMERE, C. J. At the conclusion of the afternoon session there was a motion made on behalf of the defendants to instruct the jury to render a verdict in their favor, on the ground that the evidence submitted by the state afforded no ground to support a conviction. The making of the application seems to the court to be a submission of the case by the defendants on the evidence of the state, and the question, therefore, is whether, on the evidence upon which the case is rested there is anything which will support the conclusion that these defendants, or any of them, have been so grossly negligent in the performance of the duty which they owed to the children who were passengers on this car as to render them criminally responsible.

That this crossing is a place of especial danger cannot be controverted. That human ingenuity could not render it absolutely safe is manifest. But notwithstanding that fact, neither the corporation, whose agents these defendants are, nor the defendants themselves, are guilty of any criminal act, or even civilly responsible for the construction of their railroad at this place. I say that for this reason: The Legislature has authorized the North Jersey Street Railway Company, or its predecessor, to construct and operate a trolley road along the surface of Clifton avenue, down that incline, and across the tracks of the steam railroad company at grade. And being authorized by the Legislature, the act is a legal one. No responsibility, either criminal or civil, rests upon a man who does a legal act, unless he does it in a negligent way. And so the state very properly concedes, as I understand it, that the only responsibility which can attach is such as arises from a negligent performance of duty, either in the method of construction of that road in that dangerous locality, on the grade of the street, or in the system of its operation. The question of the criminal responsibility of the individual officers or agents of the company is a much narrower one than that of the civil responsibility of the corporation. It must appear that each one of these directors or officers, to be responsible criminally, has been guilty of gross negligence, either in the doing of, or in the omission to do, some specific act, which was rendered necessary in the performance of his duty to the children who rode on that car.

It is said by the state that the negligence has been shown, first, in the improper construction of the road at this point; and, second, in the improper operation of the road. The road is constructed on the surface of the street without a derailing switch, and that omission is said to be an act of negligence on the part of these defendants so gross as to make them criminally responsible for this accident. The allegation assumes that the absence of the switch produced the accident. It is said, too, that gross negligence is shown by the fact that these defendants permitted the front platform of this car to be crowded. That assumes that the permission to ride on the front platform, given to the members of the public who did so, or given to these children who did so on this occasion, contributed to produce the accident.

The undisputed facts, as submitted by the state, show that at the crossing of trolley roads by steam railroads it is not the universal practice to put in what have been called here "derailing switches," and that, so far as the case discloses, not more than perhaps 10 per cent. of all the crossings in this country are so protected. That suggests, at least, the idea that there must be a great difference of opinion among men who operate these trolley roads at such points as to the advisability, the wisdom, of such a method of protection, as to whether or not it really does add to the safety of the crossing, or whether it does not, in fact, make it more, rather than less, dangerous. I say that raises a question, and, where a question is presented of that kind, there being reasons for and against the adoption of a scheme, it does not follow that, because one method is discarded, rather than adopted, the act is a negligent one. Whether or not a derailing switch is a necessary precaution, the omission of which suggests, or rather demonstrates, gross negligence on the part of those who omit to put it in, cannot be decided without considering also the question of the operation of the road as it is constructed. This road was constructed, it is true, without a derailing switch at the point or near the point of crossing. But for the protection of passengers who rode on its cars, this company and these defendants, so far as they are responsible for the operation of the system, adopted a set of rules which were to be observed by their employes at points like Clifton avenue crossing. Those rules required, at this point, the motorman to stop his car at Orange street, at the head of the grade. They required him, when he afterward started his car, to keep it continually under control until he reached a point, as I recall it, about 30 feet from the steam railroad crossing. They required him there to stop his car. And the fact that during a period of at least two years preceding this accident no car, so far as any witness has been called to show, ever came down that grade not under control, or ever failed to stop at the point indicated, shows that, under ordinary conditions, those rules, if observed, made the operation of that car down that hill, without the presence of a derailing switch, safe.

In order to provide for unusual contingencies, such as a bad track, or slippery rail, specific instructions with relation to the management of the brake under those conditions were supplied to the motormen, and they were required to observe them; and, as a further precaution, sand was required to be supplied to all of the cars, under the rules, for the still further protection of people riding on the cars, to be used when the brake failed to stop the car on account of the slippery condition of the rail. And it is clear from the testimony in this case that, if sand had been used in accordance with the rules, and if the brakes had been operated in the way required by the rules, this accident would not have happened.

It is said in answer to that, by the prosecutor, that the inability to use the brakes in the way required by the rules was due to the fact that the car was so crowded on the front platform as to interfere with the motorman. The testimony, as I understand it—and I have examined it carefully—does not support that contention. From the time when passengers appear first to have been permitted to ride on the front platform of these cars, going to and from the High School, in September, 1902, down to the very time of this accident, there never were so many people permitted on the front platform of the car as to interfere at all with the motorman in the operation of his brakes. And so, if it be conceded —and I do concede it for the purpose of disposing of this application, although I doubt whether it can be legally conceded — that these defendants are chargeable with the knowledge of the fact that children were permitted to ride on the front platform (for no evidence shows that it had been brought to their knowledge), there was nothing in that condition of affairs to justify them in the conclusion that the presence of these children on the platform in numbers not sufficient to interfere with the motorman in the operation of his car added any danger to the lives or limbs of those who were riding thereon. I have already said that if sand had been used by the motorman, in accordance with his instructions, this car could have been stopped.

There was an additional protection afforded by the rules which I omitted to state, and that was that, after the car had been brought to a stop at a point 30 feet from the crossing, the conductor was. required to go forward onto the middle of the crossing, and...