On writ of error to the Essex County Quarter Sessions Court.
For the plaintiff in error, Hobart & Minard (George S. Hobart, of counsel).
For the defendant in error, Joseph L. Smith, prosecutor of the pleas, and Simon L. Fisch, assistant prosecutor of the pleas.
Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
The opinion of the court was delivered by
TRENCHARD, J. This writ was sued out to review a conviction of the plaintiff in error (hereinafter called the defendant) on a charge of manslaughter alleging that on July 1st, 1929, in the town of Belleville, Essex county, the defendant did feloniously kill and slay John Goble. The defendant brings up the entire record of the proceedings had
upon the trial and assigns error on his bill of exceptions, and also specifies causes for reversal under sections 136 and 137 of the Criminal Procedure act.
The indictment was based upon a grade crossing accident at Rutgers street, Belleville. This street crosses the tracks of the Erie Railroad Company at grade.
At the time of the accident the defendant was employed by the railroad company as a crossing gateman. The state claimed that the death of Goble was due to gross negligence on the part of the defendant in failing to lower the crossing gates for an approaching train, as a result of which Goble drove upon the tracks in his automobile and was struck and killed by the train.
The trial court denied motions for direction of a verdict made at the close of the state's case, and at the conclusion of the entire case, and permitted the jury to consider whether the evidence showed gross negligence on the part of the defendant, saying:
"The elements of the crime as charged in the indictment, and as the prosecution now claims to have been proven beyond a reasonable doubt, are four in number: First, a plain legal duty from defendant to the deceased. Second, neglect or failure of that duty to an extent amounting to gross negligence; in other words, negligence evincing a reckless indifference to or disregard of human life. Third, that the injuries received by the deceased were the result of this gross negligence, and were the proximate, regular, likely and natural consequences thereof. Fourth, that the deceased came to his death by reason of such injuries."
It was contended below and is argued here that the court erred in refusing to direct a verdict for the defendant upon the ground that the state failed to prove that there was neglect or failure of ...