On appeal from the Supreme Court.
For the appellant, David A. Veeder.
For the respondent, Frederick B. Scott.
The opinion of the court was delivered by
KAYS, J. This case is an appeal from a suit brought in the Ocean County Circuit of the New Jersey Supreme Court under the Federal Employers' Liability act, to recover damages for the death of George Noon, by his widow as administratrix against the Delaware, Lackawanna and Western Railroad Company. The case was tried before Judge Lawrence and a jury, and the learned trial judge at the close of the plaintiff's case directed a verdict in favor of the defendant, which is the respondent here.
George Noon, the decedent, was a freight brakeman employed by the Delaware, Lackawanna and Western Railroad Company. The place of the accident was on or near the
westbound track of the defendant's railroad near Clifton, New Jersey, which lies on the main line of the railroad between Hoboken and Paterson. The decedent was killed as a result of being struck by an engine of an express train passing through Clifton while he was engaged as one of a crew of a freight train in switching cars from the main track toward the yard of the Athenia Steel Company, into which yard the cars were to be delivered. There was no witness produced who testified that he saw the accident.
This is the second trial of the case. The first trial went to the jury and the jury rendered a verdict in favor of the plaintiff, as a result of which the judgment entered in the case was appealed to this court and decided by this court on February 4th, 1929. Noon v. Delaware, Lackawanna and Western Railroad Co., 105 N.J.L. 431. The opinion of the former judgment was written by the late Mr. Justice Katzenbach for this court and therein the judgment of the court below was reversed upon the ground that there was no evidence to support it. The case was then retried and as before stated the trial judge, considering that the former decision of this court was controlling under the facts proved at the second trial, directed a verdict for the defendant. From this judgment at the second trial plaintiff has appealed to this court, claiming that the earlier decision of this court is not controlling under the facts proved at the second trial. The facts as set forth in the opinion of this court by Mr. Justice Katzenbach are in detail and it therefore is not deemed necessary to restate them here.
The first contention made by the appellant is that under the unusual circumstances shown by the evidence and of the general custom and practice of reasonably prudent engineers under like circumstances (that is, circumstances like those that existed in the present case at the place of the accident) the engineer of the express train negligently failed to sound a whistle in time to give the decedent, Noon, a reasonable chance to escape. This feature of the case was dealt with and decided by this court in its former opinion above referred to, and the facts presented now as to the same are no different
than those which were presented to this court then. Our conclusion therefore is that there is no merit for this contention for the reasons which were stated by Mr. Justice Katzenbach in the opinion of this court above referred to.
The second point relied upon by the appellant is that the engineer of the express train was negligent in failing to anticipate what happened and in failing to follow the custom and practice of reasonably prudent engineers under the facts in evidence. We see no difference in this contention from the contention made under point one and as this ...