Winter v. N.Y. & L. B. R. Co.

• Decision Date: 21 November 1901
• Parties: WINTER v. NEW YORK & L. B. R. CO. et al.
• Court: New Jersey Supreme Court

50 A. 339

66 N.J.L. 677

WINTER

v. NEW YORK & L. B. R. CO. et al.

Court of Errors and Appeals of New Jersey.

Nov. 21, 1901.

(Syllabus by the Court.)

Error to circuit court, Monmouth county.

Action by Christopher Winter against the New York & Long Branch Railroad Company and the Central Railroad Company of New Jersey. 'Judgment for defendants, and plaintiff brings error. Affirmed.

Michael J. Tansey, for plaintiff in error. Applegate & Hope, for defendant in error New York & L. B. R. Co.

John L. Conover, for defendant in error Central R. R. Co. of New Jersey.

ADAMS, J. The plaintiff sued to recover damages for injury received by collision with a railroad train, and was nonsuited on the ground that his own negligence was a cause of his injury. The correctness of this ruling is now to be examined. The plaintiff is a milkman. Upon December 1, 1899, half an hour before sunrise on a foggy morning, he set out from his house, near Cliffwood, in Middlesex county, in a one—horse wagon, on his daily route. The plaintiff's position in his wagon was not favorable for seeing and hearing. The wagon had a cover, and a hood in front, with a dashboard, and a sliding door on either side, with a glass window in the upper part of the door panel. Thus inclosed, the plaintiff sat in a seat at the rear of the wagon, with two milk cans in front of him. After leaving his house he drove westerly along a road running about east and west, that crossed at right angles a double—track railroad of the defendants. The plaintiff was familiar with the locality, and knew that there were no gates at the crossing, and that no flagman was stationed there. When distant about 368 feet from the crossing he opened the door on the right—hand side of the wagon, and looked toward the north, across a field, for a south—bound train. He did this, not because he had a definite expectation of seeing a train, but by way of general precaution. Indeed, he testified affirmatively that he did not expect to see a south—bound train, for he had heard a whistle before he left his house, from which he inferred that the early morning train from Jersey City had passed. Nevertheless he very properly looked toward the north. Seeing and hearing nothing, he was confirmed in his Inference that the south—bound train had already gone by, and, reposing on that assurance, opened the door on the south side of the wagon, and thenceforward gave his undivided attention to that quarter, where obstructions to sight made observation difficult. So, not looking again toward the north, he drove on until he reached the crossing, when he suddenly lost consciousness, and knew nothing more until he came to himself in his own house. What happened was that the south—bound train, coming along about three—quarters of an hour late, had struck his wagon. The plaintiff testified that, when he looked to the north, if there had been a train "at the point of the woods" he could have seen it, or that he could have seen the lights. The place referred to as "the point of the woods" was distant...