Weiss v. Cent. R. Co. of New Jersey

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: REED, J.
• Citation: 76 N.J.L. 348,69 A. 1087
• Parties: WEISS v. CENTRAL R. CO. OF NEW JERSEY.
• Decision Date: 08 June 1908

69 A. 1087
76 N.J.L. 348

WEISS
v.
CENTRAL R. CO. OF NEW JERSEY.

Supreme Court of New Jersey.

June 8, 1908.

Appeal from District Court of City of Perth Amboy.

Action by Solomon Weiss against the Central Railroad Company of New Jersey. Judgment for plaintiff, and defendant appeals. Reversed.

Argued February term, 1908, before REED, PARKER, and VOORHEES, JJ.

George Holmes, for appellant. Joseph E. Stricker, for respondent.

REED, J. This is an appeal from a judgment in the district court of the city of Perth Amboy. The action is to recover damages caused by a collision between a train of the defendant and a wagon of the plaintiff. The collision occurred at a point where Woodbridge avenue crosses the Sound Shore Branch of the defendant's railroad, in or near the village of Carteret, Middlesex county. The plaintiff says that between 11 and 12 o'clock in the forenoon of the 10th day of December, 1906, he approached the railroad track, and when the horse was within 5 feet, and he sitting in his wagon was within 15 feet of the track, be stopped and listened for a bell, and, not hearing any signal, he drove on across the track, and when nearly over, the rear of his wagon was struck by a train, which demolished his wagon and threw him out and injured him.

The negligence charged against the defendant is that no whistle was blown, nor bell sounded, in accordance with the statutory requirements. The plaintiff says he heard neither whistle nor bell, but it is in evidence that he had his coat collar turned up, and that he wore a cap with ear lappets. It is also obvious that he was relying, not upon a whistle or bell upon an approaching engine, but upon a stationary bell at the crossing, for he says he stopped and looked and listened for the bell, because generally on a crossing is a bell with a signal that rings; and "he did not hear no bell ringing." His testimony is purely negative, and his attention was obviously diverted from listening for an engine signal. There was another witness for the plaintiff, who was riding in the smoker of the train that collided with the wagon, but he merely says that no whistle was blown, as he knows, and he does not remember whether or not he heard a bell ring. The remaining witness is a Mr. Donovan, who says he was approaching this crossing in an opposite direction, on the same highway that the plaintiff was traveling. He says he was 125 feet from the railroad track, and saw the train at Leibig's woods, and Leibig's woods he says is about 500 feet away. He says, at the time he saw the train, he also saw the plaintiff approach the track, and stop, look, and start off again. He also says that he heard no bell nor whistle, and that, from the place where the...