New York, Lake Erie & Western Railway Co. v. Randel

The opinion of the court was delivered by The Chancellor.

This suit was brought by Samuel Randel to recover damages from the railroad company for injuries received by him while crossing the track of its railroad where it crosses Straight street, in the city of Paterson. The injuries arose from a collision of a locomotive engine, drawing a train of cars belonging to the company, with Randel’s wagon, in which he was riding. The company insists that the court at the trial ought to have given judgment of non-suit when the plaintiff rested, because, as it insists, the evidence showed contributory negligence on the part of the latter. The proof was that just before Randel reached the track (of which there *145 were several) he looked and saw that there was no flagman out. He then brought his horse, which was on a trot, to a walk, and just before going upon the tracks both looked and listened to ascertain whether there would be danger in crossing. He looked both up and down the railroad, but saw nothing moving. It was not until he got upon the track that the flagman, whose station was on the opposite side of the tracks from that from which Randel came, made his appearance. He came out of his house with his flag rolled up, and moved so slowly, unfurling it as he walked, that Randel thought he was getting ready to give warning for a switching train. Before the flagman got his flag unfurled, he cried out to the plaintiff to warn him of the approaching train, but it was too late. It is quite clear that upon this evidence there was no warrant for a judgment of non-suit on the ground of contributory negligence.

Error is assigned also upon the refusal of the judge to charge, as requested by the company’s counsel, that there was no proof that the company was in default as to giving signals. The judge submitted it to the jury to say whether the mere ringing of the bell at the crossing-where there were so many other noises and where the difficulty of seeing approaching trains was so great, was adequate warning on the part of the company. There was no error in the refusal to charge that under the circumstances the company had discharged its whole duty to those of the public who had occasion to cross the track at that place, merely by ringing the bell. The rule on the subject is laid down in Pennsylvania R. R. Co. v. Matthews, 7 Vroom 531 , that where a railroad company has created extra danger it is bound to use extra precautions. And, it is added, that if the track is put in a position where the trains, when close to their transit over a public street of road, cannot be seen, that is an extra danger calling for more than the ordinary cautionary signals.

Hor was there error in the charge that it was the duty of the flagman to notify the traveler before he began to cross the tracks, and that if led by the absence of the flagman and the *146 fact that he perceived no danger, the traveler drove upon the tracks, and after ’ he got there the flagman appeared and warned him, but he misunderstood the warning, the fact that he so misunderstood it and went forward when he ought to have retreated, would not, under the circumstances, be attributable to him as negligence.

The judgment should be affirmed.

For affirmance — The Chancellor, Chief Justice, Depue, Knapp, Magie, Parker, Reed, Soudder, Yan Syckel, Brown, Clement, Cole, Paterson. 13.

For reversal — None.