Tischler v. W. Jersey & S. R. Co.

• Decision Date: 27 April 1933
• Docket Number: No. 51.,51.
• Citation: 166 A. 485
• Parties: TISCHLER et al. v. WEST JERSEY & S. R. CO.
• Court: New Jersey Supreme Court

166 A. 485

TISCHLER et al.

v. WEST JERSEY & S. R. CO.

No. 51.

Court of Errors and Appeals of New Jersey.

April 27, 1933.

Appeal from Supreme Court.

Actions by Philip Tischler, administrator ad prosequendum of Dora Tischler, deceased, and others, against West Jersey & Seashore Railroad Company. Prom judgments for plaintiffs, defendant appeals.

Affirmed.

See, also, 155 A. 139, 9 N. J. Misc. 560.

Bourgeois & Coulomb, of Atlantic City, for appellant.

William I. Garrison, of Atlantic City, for respondents.

BROGAN, Chief Justice.

This case involves an appeal from four judgments returned at the Atlantic County Circuit of the Supreme Court in favor of the plaintiffs and against the defendant on the following facts:

Mendell Tischler, one of the plaintiffs, accompanied by his stepmother, Dora Tischler, was driving an automobile on July 29, 1929, at 5 o'clock in the morning in an easterly direction on Baltic avenue in Atlantic City, where the same is intersected by Illinois avenue. The street first mentioned runs east and west; the second, generally, north and south. Crossing this intersection at grade are several sets of railroad tracks. Illinois avenue is guarded by crossing gates operated from a tower in this area. Baltic avenue is not so guarded, but the railroad company employs a crossing watchman at that point. At this crossing there is a north-bound then a south-bound track; a yard track, likely used for switching purposes; then a north and south bound track of the electric line which the map designates as the Newfieid Branch; and still another, apparently a siding, known as the Jersey track. The train which collided with the plaintiff's automobile apparently was engaged in a switching operation, because it had moved over this intersection in the opposite direction shortly prior to the happening. It had been running on what is known as the Jersey track and thence had been switched to the yard track. At the time of the accident the engine was at the rear of a line of cars, seven in number, and was thus moving the train. On the top of the front and last car a brakeman was stationed each with a lighted lantern.

On the previous movement of the switching operation and after the train had passed the point of Illinois avenue, the gates were raised, and when the train started back again these gates were lowered, and the testimony is that the crossing watchman stood in the middle of Baltic avenue swinging his lantern. There was testimony, too, that the brakeman stationed on top of the front car of the train was swinging his lantern and that the bell of the engine was ringing. At this juncture of affairs the plaintiff came along Baltic avenue towards the tracks. The crossing man there stationed testified that he waved his lantern and shouted to Tischler to stop, and that in order to avoid being struck he had to step out of the way of the automobile. The brakeman on top of the front car says that he blew his whistle, shouted at the automobile driver, and waved his lantern, and at the same time gave a signal to the rear-end brakeman, which signal the second brakeman relayed to the engineer, who, in a very short time, stopped the train. There was testimony that the train was traveling eight miles an hour; that at the moment the accident was imminent it was about ten or twelve feet away from the automobile; and that after the collision it traveled only forty feet.

Plaintiff's car was struck at a point about in the middle of Baltic avenue and was overturned, the driver hurt, and the stepmother, Dora Tischler, so injured that as a result she died three weeks afterwards.

This evidence concerning the facts of the happening was denied by the plaintiff's witnesses who said that no bell was rung, no crossing man was on Baltic avenue waving a lantern, and no brakeman on the front part of the train, so that clear-cut issues of fact were presented for the determination of the jury.

The jury found in favor of the several plaintiffs and against the defendant in amounts totaling $18,000, which the trial court, on rule to show cause, reduced to $16,000.

Some twenty grounds are assigned for reversal, several of which have been abandoned. All of the remaining grounds for reversal have to do with the refusal of the trial court to charge certain requests submitted by the defendant and an affirmative attack upon the trial court's charge as given to the jury.

The first point made by appellant is that section 36b of the Railroad Act (3 Comp. St. 1910, p. 4238) does not relieve a traveler at a railroad crossing from looking and listening. Section 36b is as follows: "Wherever any railroad whose right of way crosses any public street or highway, has or shall install any safety gates, bell or other device designed to protect the traveling public at any crossing or has placed at such crossing a flagman, any person or persons approaching any such crossing so protected as aforesaid, shall, during such hours as posted notice at such crossing shall specify, be entitled to assume that such safety gate or other warning appliances are in good and proper order, and will be duly and properly operated unless a written notice bearing the inscription 'out of order' be posted in a conspicuous place at such crossing, or that the said flagman will guard said crossing with sufficient care whereby such traveler or travelers will be warned of any danger in passing over said crossing, and in any action, brought for injuries to person or property, or for death caused at any crossing protected as aforesaid, no plaintiff shall be barred of the action because of his failure of the person injured or killed to stop, look and listen before passing over said crossing. (P. L. 1909, p. 137.)"

Now the appellant contends that the failure of the trial court to honor its...