Thompson v. Pa. R. Co.

CourtNew Jersey County Court
Writing for the CourtPITNEY, V. C.
Citation48 N.J.E. 105,21 A. 182
Decision Date03 February 1891
PartiesTHOMPSON v. PENNSYLVANIA R. CO. In re BARNARD.
21 A. 182
48 N.J.E. 105

THOMPSON
v.
PENNSYLVANIA R. CO.
In re BARNARD.

COURT OF CHANCERY OF NEW JERSEY.

Feb. 3, 1891.


(Syllabus by the Court.)

Proceedings in contempt for breach of injunction.

Mr. Wartman and Mr. Crandall, for the motion.

S. H. Gray, contra.

PITNEY, V. C. On the 3d day of December, 1889, an injunction issued out of the court directed to the defendant, its servants and agents, enjoining them to "absolutely desist and refrain from operating your engines in front or near the house of John B. Thompson, at the south-east corner of Bridge avenue and Fourth street, in the city of Camden, for the purpose of distributing and shifting your cars, and making up trains, and from using the southernmost track in front or near to said dwelling, to stand, put, or place carsladen with cattle, sheep, or hogs upon, except in extraordinary emergencies it becomes unavoidable." On the 9th day of July, 1890, the complainant presented his petition, supported by affidavits, setting forth that one William H. Bannard was the superintendent of that part of defendant's railroad mentioned in the injunction, and had been duly served with a copy of the writ, and that it had been broken by drilling, etc., in front of complainant's premises. An order was made on this petition calling on Mr. Bannard to show cause why he should not be attached for a contempt of this court on account of his breach of the injunction. On the return of this order a day was fixed for the hearing, and both parties were fully heard by evidence taken orally. It appeared by the evidence that as soon as the decision of the court of errors and appeals, (45 N. J. Eq. 870, 19 Atl. Rep. 622,) which resulted in the writ, was made known to Mr. Bannard, and before the writ actually issued, he issued orders in writing to all the employes of the company to abstain from doing the prohibited acts, and also gave oral orders to the same effect. With regard to the first branch of the injunction,—that directed against running engines for drilling purposes in front of complainant's house,—he directed all engineers, in going out from the yard towards complainant's house, to stop their engines before reaching Fourth street. If this order had been strictly obeyed in all instances there would have been no breach of the injunction. But in point of fact it was not in every instance observed, and in many instances, between the issuing of the injunction and the filing of the petition, and again since that time, engines going out from the round-house and yard, either with cars behind them to be backed into the station, or alone to be backed down in front of passenger trains, have passed Fourth street and the front of complainant's house. Was this forbidden by the injunction? I think it was. It was a use

21 A. 183

of the tracks in front of complainant's premises for terminal purposes,—distributing and shifting cars and making up trains. Mr. Bannard denied all intention to violate or disregard the injunction, and I am satisfied he intended in good faith to obey it. And it is proper to add that, though I have felt constrained to find that the injunction has been disobeyed in many instances, yet it is quite true, as urged by defendant's counsel, that in the very great majority of the movements of engines of the character mentioned, amounting to several hundred each day, they did stop at Fourth street, and no breach occurred. Upon this case, counsel for Mr. Bannard made several points: First, that the exception of "extraordinary emergencies," etc., applies to both branches of the injunction, as well that against drilling as that against the standing of trains loaded with live animals in front of complainant's premises; second, that the burden is on the complainant to show that the comparatively few breaches proven in the case were not justified by the exception before referred to; third, that the superintendent can only be punished for a willful and intentional breach of the injunction, and that the element of intent is wanting here.

With regard to the first point. Upon a simple reading of the writ, and a consideration of the subject-matter, I should have thought that the exculpatory clause was intended to apply only to the last branch of the injunction, but by reference to the opinion of the court of appeals in Railroad Co. v. Angel, 41 N. J. Eq. 316, 7 Atl. Rep. 432, which formed the precedent for this case, I find (on page 331, 41 N. J. Eq., 7 Atl. Rep. 434) that the court intended that the exception should extend to both branches of the injunction, and, as the language used is capable of being so construed, I will so consider it.

As to the second point. It seems to me that Mr. Bannard is clearly wrong upon the plainest principles of construction, the general rule being that he who seeks the benefit of an exception of this sort must prove himself within it. And here again a reference to the opinion just cited shows that the court intended that the burden should be thrown on the railroad company of showing that the forbidden act was excused by the special circumstances. Says the learned justice: "The injunction should be against the use of those tracks for the purposes indicated in the transaction of the...

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26 practice notes
  • Clay v. Waters, 3,131
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 18, 1910
    ...individuals whose private rights and remedies they were instituted to protect or enforce. Thompson v. Railroad Co., 48 N. J. Eq. 105, 108, 21 A. 182; Hendryx Fitzpatrick (C.C.) 19 F. 810; Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 Barn. & C. 652; People v. Court of Oyer & Termi......
  • Merchants' Stock & Grain Co. v. Board of Trade of City of Chicago, 3,404.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 24, 1912
    ...individuals whose private rights and remedies they were instituted to protect or enforce. Thompson v. Railroad Co., 48 N.J.Eq. 105, 558, 21 A. 182, Hendryx v. Fitzpatrick (C.C.) 19 F. 810; Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 Barn. & C. 652; [201 F. 24] People v. Court of......
  • United Factory Outlet, Inc. v. Jay's Stores, Inc.
    • United States
    • Massachusetts Supreme Judicial Court
    • February 4, 1972
    ...contempt, it has been rejected. Prior to the McComb case, the leading American case was Thompson v. Pennsylvania R.R., 48 N.J.Eq. 105, 21 A. 182, involving an adjudication of civil contempt against a superintendent of a division of the Pennsylvania Railroad. As his principal defence, the su......
  • W.A.&H.A. Root v. MacDonald
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 8, 1927
    ...v. Cleveland, 49 N. J. Eq. 577, 25 A. 367,31 Am. St. Rep. 719; Cf. Thompson v. Pennsylvania Railroad, 48 N. J. Eq. 105, 111, 112, 21 A. 182. In other states such damages are allowed in accordance with governing statutes. Socialistic Co-operative Publishing Association v. Kuhn, 164 N. Y. 473......
  • Request a trial to view additional results
26 cases
  • Clay v. Waters, 3,131
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 18, 1910
    ...individuals whose private rights and remedies they were instituted to protect or enforce. Thompson v. Railroad Co., 48 N. J. Eq. 105, 108, 21 A. 182; Hendryx Fitzpatrick (C.C.) 19 F. 810; Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 Barn. & C. 652; People v. Court of Oyer & Termi......
  • Merchants' Stock & Grain Co. v. Board of Trade of City of Chicago, 3,404.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 24, 1912
    ...individuals whose private rights and remedies they were instituted to protect or enforce. Thompson v. Railroad Co., 48 N.J.Eq. 105, 558, 21 A. 182, Hendryx v. Fitzpatrick (C.C.) 19 F. 810; Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 Barn. & C. 652; [201 F. 24] People v. Court of......
  • United Factory Outlet, Inc. v. Jay's Stores, Inc.
    • United States
    • Massachusetts Supreme Judicial Court
    • February 4, 1972
    ...contempt, it has been rejected. Prior to the McComb case, the leading American case was Thompson v. Pennsylvania R.R., 48 N.J.Eq. 105, 21 A. 182, involving an adjudication of civil contempt against a superintendent of a division of the Pennsylvania Railroad. As his principal defence, the su......
  • W.A.&H.A. Root v. MacDonald
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 8, 1927
    ...v. Cleveland, 49 N. J. Eq. 577, 25 A. 367,31 Am. St. Rep. 719; Cf. Thompson v. Pennsylvania Railroad, 48 N. J. Eq. 105, 111, 112, 21 A. 182. In other states such damages are allowed in accordance with governing statutes. Socialistic Co-operative Publishing Association v. Kuhn, 164 N. Y. 473......
  • Request a trial to view additional results

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