W. Jersey R. Co. v. Paulding

• Decision Date: 18 November 1895
• Citation: 33 A. 381,58 N.J.L. 178
• Parties: WEST JERSEY R. CO. v. PAULDING et al.
• Court: New Jersey Supreme Court

33 A. 381

58 N.J.L. 178

WEST JERSEY R. CO.

v. PAULDING et al.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1895.

(Syllabus by the Court.)

Error to supreme court.

Action by Helen M. Paulding and others, administrators, against the West Jersey Railroad Company. Plaintiffs had judgment, and defendant brings error. Reversed.

S. H. Grey and M. P. Grey, for plaintiff in error.

C. H. Sinnickson and Wm. E. Potter, for defendants in error.

GARRISON, J. The first assignment of error is based upon a bill of exceptions which certifies that the plaintiff below, against the objection of the defendant, was permitted to put in the minute book of the borough of Woodstown, in order to prove the passage of an ordinance requiring the defendant to maintain at all times a flagman at the crossing at which the plaintiff's intestate was killed, and that notice thereof was directed to be given to the defendant corporation.

This testimony was clearly illegal. The matter was res inter alios, even if any proof had been offered of the legal existence of the municipality in question, or of its legislative authority to impose the regulation prescribed.

The injurious nature of the testimony is likewise apparent. The decedent was a resident of Daretown, who was killed by being struck by a locomotive of the defendant at a road crossing near Woodstown. The question of his contributory negligence entered largely into the issue. Upon this point, the fact that a municipality near the crossing had made a requisition upon the defendant to protect at all times passengers upon the highway from the dangers of this crossing was a most persuasive argument in favor of the view that otherwise travelers would be exposed to extraordinary dangers. This was a question to be decided by the jury upon competent proof. Upon such a point the opinion of the neighboring municipal authorities could not be deemed to be without its influence on the jury.

No serious effort is made to justify the admission of this proof, other than that the objection to it was not sufficiently specific. An effort was made, however, to nullify its injurious effect by a reference to the stenographer's notes, which show that after the allowance and sealing of the exception the plaintiff's counsel asked to withdraw the proof. The notes further show that to this proposition the trial court replied: "You have offered the ordinance and the record of the direction given by the borough council to notify the company; then...