On appeal from the Supreme Court.
For the defendant-appellant, Collins & Corbin (Edward A. Markley and Howard F. McIntyre, of counsel).
For the plaintiff-respondent, Leo S. Carney (Sara V. Dunn, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. This is defendant's appeal from a judgment of the Supreme Court entered upon the verdict of a jury at the Hudson Circuit in favor of the plaintiff and against the defendant railroad company.
The action was begun to recover for damages occasioned to plaintiff's motor truck on Frelinghuysen avenue, in the city of Newark, in a collision with another motor truck as it was about to enter the defendant's right of way which crosses Frelinghuysen avenue at grade, where the defendant maintained safety gates.
The ground of appeal upon which the defendant-appellant relies, is that the trial court should have granted a nonsuit, or directed a verdict in favor of the defendant when thereunto moved, on one or more of the following grounds urged in support of such motions: (a) There was no evidence of negligence on the part of the defendant; (b) there was no evidence of negligence on the part of the defendant that was the proximate cause of the accident; (c) plaintiff was guilty of contributory negligence.
Of course, on this appeal, we are not concerned with the weight of the evidence, which seems to be much argued.
Motions for nonsuit and to direct a verdict for the defendant, for the purpose of the motions, in effect admit the truth of the evidence, and of every inference of fact that can be legitimately drawn therefrom, which is favorable to the plaintiff, but deny its sufficiency in law; and where such evidence or inferences of fact will support a verdict for the plaintiff, such motions must be denied. Barry v. Borden Farm Products Co., 100 N.J.L. 106; Andre v. Mertens, 88 Id. 626; Sefler v. Vanderbeck & Sons, Ibid. 636.
In the case at bar we believe that the conflicting evidence presented a case for the jury. The jury might have found, and no doubt did find, among others, the following matters of fact: At ten o'clock in the morning of a clear day, the plaintiff's truck, with brakes in good order, was traveling northerly on Frelinghuysen avenue, a much traveled public highway in the business district of the city of Newark, at
a speed of about ten miles an hour, and about eight feet behind a truck belonging to the Griselli Chemical Company, which was about to cross the defendant railroad's right of way at grade, where it maintained safety gates to protect the traveling public. The drivers of both trucks knew the crossing, and, as they approached it, saw that the gates were upright. When the chemical company's truck was "about a foot away from the railroad crossing the defendant's gateman started to put down the gates without any warning." The driver of the chemical company's truck immediately applied his brakes, but the gate "came down fast" on the hood of his truck when the hood of the truck was about four feet beyond the gate and into the railroad's right of way. The driver brought his truck (which was equipped with high powered vacuum brakes) to an abrupt stop, without giving any warning to the driver of the plaintiff's truck that he was about to do so, with the result that plaintiff's truck collided with the rear of the chemical company's truck, and plaintiff's truck was damaged.
In such state of the evidence the questions (1) whether the defendant's gateman was negligent, (2) whether his negligence was the proximate cause of the accident, and (3) whether the plaintiff's driver was guilty of ...