van Riper v. N.Y., S. & W. R. Co.

• Decision Date: 12 November 1904
• Citation: 71 N.J.L. 345,59 A. 26
• Court: New Jersey Supreme Court
• Parties: VAN RIPER v. NEW YORK, S. & W. R. CO.

59 A. 26

71 N.J.L. 345

VAN RIPER

v. NEW YORK, S. & W. R. CO.

Supreme Court of New Jersey.

Nov. 12, 1904.

Action by Percy R. Van Riper against the New York, Susquehanna & Western Railroad Company. On rule to show cause. Rule made absolute.

Argued June term, 1904, before GUMMERE, C. J., and GARRISON and SWAYZE, JJ.

Collins & Corbin, for the rule.

James G. Blauvelt, opposed.

GUMMERE, C. J. The plaintiff in this case sued to recover compensation for injuries received by him on an evening in December at the crossing of the defendant company's railroad and Vreeland avenue, in the city of Paterson, in a collision between one of the company's trains, running on the west-bound track, and a wagon in which the plaintiff was driving. The jury having rendered a verdict in his favor, the trial justice allowed a rule to show cause why it should not be set aside.

The plaintiff's description of the way in which the accident occurred is as follows: "I came out of Burke's saloon [which appears to have been about seventy feet from the crossing] and walked around my horses and looked down the track and up the track, and saw nothing; then I got on my truck. After getting on the truck I swung the horses straight across the street to get on the right side of the street, looking down the track and up the track, and I saw nothing. When I got on the track there was a wagon passed me on the track. I was looking up the track towards Paterson at the time. My horses were about to go on the west-bound track, and just then I glanced down the track and saw the train coming, and, on account of its being slippery, I knew I could not stop my horses, and I thought the next best thing was to get over. Just then the gateman came running down the platform and grabbed my horses and stopped them on the track, and prevented me from going any further. The train came along and struck my horses, and that is the last I know." He further stated that the gateman held his horses long enough for him to have gotten over the track twice, and that, after he (the gateman) saw that he could not do anything with them, he jumped out of the way to avoid getting hit himself. In answer to a question where the train was when he first saw it, he stated that it was just the other side of the station, at Thirty-Ninth street. It appears from an examination of the map offered in evidence that Thirty-Ninth street is 180 feet east of Vreeland avenue. He further stated that he heard no bell rung or whistle blown, and that he did not see the gateman make any attempt to lower the gates. He admits that he was familiar with the crossing, having passed over it frequently.

The following facts with relation to the surroundings at the scene of the accident appear by the undisputed testimony in the cause: A row of trees, which stood about 45 feet from the first rail of the track upon which the collision took place, somewhat obstructed the view of the plaintiff in the direction from which the train was approaching. As he drew nearer the crossing his view was also obstructed to some extent by telegraph poles; but upon reaching a point 32 feet from the first rail of the defendant's west-bound track, measured along the center line of the avenue, he had an unobstructed view down the track in that direction for a distance of more than half a mile, and that view continued to be entirely uninterrupted until the crossing was reached, except so far as it was interfered with by the presence of a gate maintained by the railroad company for the protection of the crossing....