W. Jersey R. Co. v. Ewan

• Decision Date: 05 December 1893
• Citation: 55 N.J.L. 574,27 A. 1064
• Parties: WEST JERSEY R. CO. v. EWAN.
• Court: New Jersey Supreme Court

27 A. 1064

55 N.J.L. 574

WEST JERSEY R. CO.

v. EWAN.

Court of Errors and Appeals of New Jersey.

Dec. 5, 1893.

(Syllabus by the Court.)

Error to supreme court.

Action for personal injuries by John Ewan against the West Jersey Railroad Company. Plaintiff had judgment, and defendant brings error. Reversed.

Samuel H. Grey, for plaintiff in error.

John W. Westcott, for defendant in error.

DIXON, J. This writ of error brings up a judgment rendered in the supreme court upon a verdict for the plaintiff, obtained in the trial at the Camden circuit. The errors are assigned upon bills of exceptions sealed by the trial judge.

It is necessary for us to notice only one of these assignments,—that directed against the refusal to nonsuit the plaintiff below. The facts upon which the question of nonsuit must be decided are that on April 16, 1892, a dull, drizzly day, the plaintiff, about half past 5 o'clock in the afternoon, came on foot along Spruce street, in the city of Camden, to cross the defendant's railroad, which there consisted of three tracks; that, as he reached the nearest track, a freight train was going towards his left on the track furthest from him; that this train made a "tremendous noise," as the plaintiff described it, and emitted smoke, which settled down upon the tracks; that the plaintiff stood upon the nearest track, which he knew to be not in use, until the freight train passed the street crossing, and then, knowing that the middle track was used for trains coming from his left, he looked towards the left, and seeing nothing but smoke upon the tracks, and hearing no whistle or bell, he proceeded to walk across at his usual gait, and was struck by a train coming from the left on the middle track. From these circumstances it is apparent that the plaintiff, without any reason for haste, went upon the track when it was evident to him that he could neither see nor hear any train which he was aware might be approaching, and when the causes of his inability to see and hear were so fleeting that in a few seconds they would have gone. It seems indisputable that such conduct was negligent. In the exercise of reasonable prudence, a man could not expose his life to a peril which he knew might be imminent, if a delay of a few moments would assure him of safety, unless impelled by some motive of extreme urgency. In Merkle v. Railrdad Co., 49 N. J. Law, 474, 9 Atl. 680, this court held that it was negligent for a person to drive upon a railroad, when...