Staub v. The Public Service Ry. Co.

• Court: New Jersey Supreme Court
• Writing for the Court: KATZENBACH, J.
• Citation: Staub v. The Public Service Ry. Co., 117 A. 48, 97 N.J.L. 297 (N.J. 1922)
• Decision Date: 06 March 1922
• Docket Number: No. 22.,22.
• Parties: MICHAEL STAUB, IN HIS OWN RIGHT AND TO THE USE OF LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, APPELLANT, v. THE PUBLIC SERVICE RAILWAY COMPANY, RESPONDENT

117 A. 48

STAUB

v. PUBLIC SERVICE RY. CO.

No. 22.

Court of Errors and Appeals of New Jersey.

March 6, 1922.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Michael Staub, in his own right and to the use of Liverpool & London & Globe Insurance Company, against the Public Service Railway Company. Judgment of dismissal, and plaintiff appeals. Affirmed.

Austin H. Swackhamer, of Woodbury, for appellant.

Lefferts S. Hoffman, of Newark, for respondent.

KATZENBACH, J. This is an appeal from a judgment of nonsuit rendered in an action at law instituted in the Supreme Court and tried at the Gloucester circuit. Michael Staub in his own right and to the use of the Liverpool & London & Globe Insurance Company sued the Public Service Railway Company to recover damages arising from an accident in which his motor truck was struck by a car of the Public Service Railway Company. The car of the defendant was, at the time of the accident, being operated over a track located on its private right of way. The plaintiff was engaged in hauling gravel for the building of a road in Gloucester from a pit on a farm to which access was obtained from the public road by crossing over the private right of way and track of the defendant. When the defendant's line of electric railway was built, a crossing had been constructed over the trnck and right of way about 100 feet from the point where the accident occurred. Later a crossing was constructed over the track and right of way at the place of the accident. When the plaintiff commenced to haul gravel from the pit, the old planking was re-enforced. A motor truck and wagons were used to haul the gravel from the pit to. the public road. The accident occurred in the morning. The driver of the truck was told that the truck which had been filled with gravel was ready to be moved. The engine of the truck was running. The driver testified that he looked up and down the track and saw no trolley car coming. He then stepped back a few feet to the truck, mounted it, and without further observation drove the truck on the track of the defendant. A car was approaching. It struck the truck and damaged it. The car gave no signal of its approach by bell or whistle, and was proceeding rapidly. The crossing was obscured somewhat from view by shrubbery.

The trial court based its nonsuit upon the grounds that the crossing was not a public road, and the defendant, therefore, not guilty of negligence in failing to give warning of the approach of its car; that in the use of this crossing the plaintiff was a trespasser; that the defendant owed no duty to a trespasser except to refrain from any wanton or willful injury, of which there was no evidence.

In directing the judgment of nonsuit on these grounds, we think the trial court ruled correctly. There is no evidence that the crossing where the accident occurred was a public highway. The evidence is to the contrary. It was located by the owner of the gravel pit or his predecessor in title at the place most convenient for access to the pit from the public road. It was constructed over the right of way of the defendant without its consent or permission. It was used only by the owner of the pit or his licensees when hauling gravel. The fact that in the past there had been a crossing constructed approximately 100 feet to the west to give access...