On appeal from the Supreme Court.
For the appellant, Bourgeois & Coulomb.
For the respondents, William I. Garrison.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This case involves an appeal from four judgments returned at the Atlantic County Circuit of the Supreme Court in favor of the plaintiffs and against the defendant on the following facts:
Mendell Tischler, one of the plaintiffs, accompanied by his stepmother, Dora Tischler, was driving an automobile on July 29th, 1929, at five o'clock in the morning in an easterly direction on Baltic avenue in Atlantic City, where the same is intersected by Illinois avenue. The street first mentioned run east and west, the second, generally, north and south. Crossing this intersection at grade are several sets of railroad tracks. Illinois avenue is guarded by crossing gates operated from a tower in this area. Baltic avenue is not so guarded but the railroad company employs a crossing watchman at that point. At this crossing there is a northbound then a southbound track; a yard track, likely used for switching purposes; then a north and southbound track of the electric line which the map designates as the Newfield branch, and still another, apparently a siding, known as the Jersey track. The train which collided with the plaintiff's automobile apparently was engaged in a switching operation, because it had moved over this intersection in the opposite direction shortly prior to the happening. It had been running on what is known as the Jersey track and thence had been switched to the yard track. At the time of the accident the engine was at the rear of a line of cars, seven in number, and was thus moving the train. On the top of the front and last car a brakeman was stationed each with a lighted lantern.
On the previous movement of the switching operation and after the train had passed the point of Illinois avenue, the gates were raised and when the train started back again these gates were lowered and the testimony is that the crossing watchman stood in the middle of Baltic avenue swinging his lantern. There was testimony, too, that the brakeman stationed on top of the front car of the train was swinging his lantern and that the bell of the engine was ringing. At this juncture of affairs the plaintiff came along Baltic avenue
towards the tracks. The crossing man there stationed testified that he waved his lantern and shouted to Tischler to stop and that in order to avoid being struck he had to step out of the way of the automobile. The brakeman on top of the front car says that he blew his whistle, shouted at the automobile driver, and waved his lantern and at the same time gave a signal to the rear-end brakeman which signal the second brakeman relayed to the engineer, who, in a very short time, stopped the train. There was testimony that the train was traveling eight miles an hour; that at the moment the accident was imminent it was about ten or twelve feet away from the automobile and that after the collision it traveled only forty feet.
Plaintiff's car was struck at a point about the middle of Baltic avenue and was overturned, the driver hurt and the stepmother, Dora Tischler, so injured that as a result she died three weeks afterwards.
This evidence concerning the facts of the happening was denied by the plaintiffs' witnesses who said that no bell was rung; no crossing man was on Baltic avenue waving a lantern and no brakeman on the front part of the train, so that clear-cut issues of fact were presented for the determination of the jury.
The jury found in favor of the several plaintiffs and against the defendant in amounts totaling $18,000 which the trial court, on rule to show cause, reduced to $16,000.
Some twenty grounds are assigned for reversal, several of which have been abandoned. All of the remaining grounds for reversal have to do with the refusal of the trial court to charge certain requests submitted by the defendant and an ...