On appeal from the Supreme Court.
For the appellant, Ralph E. Cooper (George S. Hobart, on the brief).
For the respondent, John E. Selser.
The opinion of the court was delivered by
PARKER, J. The plaintiff's intestate, a flagman in the employ of the defendant, met his death shortly before seven o'clock on Sunday, October 25th, 1931, while in the performance of his duties as flagman at the grade crossing of the street called Central avenue in East Rutherford, Bergen
county. The crossing had no gates, but seems to have been equipped with a flashlight to warn travelers on the highway, in addition to the deceased, with his flag during the day and lanterns after dark. The train that passed at the time of his death, and by which it is assumed that he was struck, was train 754, due at the crossing at six-forty-eight P.M., and a little late, but it could not have passed as late as seven o'clock because the deceased was to go off duty at that time. So far as the case shows, the deceased was on the lookout for the train and aware of its approach. He was provided with a small shanty of the usual type, and the flashlight which operated as a crossing warning was provided with an auxiliary white light which indicated to the flagman in his shanty that a train was coming. It is not suggested that the flashlight did not work or that the deceased was not informed thereby, or in some other way, of the approach of the train. The only reasonable inference from the very scanty evidence as to the manner of his death, is that he had gone on the crossing from the shanty with his two lanterns, red and white, to give warning to travelers on the highway, and was struck in some way by the train while in the performance of his duty. His body was found some ten or twelve feet from the westbound track and the two lanterns lay close by.
The railroad at this point was a double track, which in the railroad vernacular runs east and west; the westbound track being the "northerly" track and the eastbound track the "southerly." The precise relative location of the shanty does not appear, but seems immaterial. In the operation of the road, it was sometimes convenient for the operating department to cause eastbound trains to run over this section of road on the westbound track; and train 754 that night was so running. No witness saw the deceased struck by the train, and the circumstances of the accident must be left to such inference as is practicable from the testimony. Apart from some unusual condition of the train, such as a projecting object, of which there is no evidence whatever, the only possible inference to be drawn as to the manner of death is that when the train crossed the crossing the deceased was either on
the westbound track on which it was running, or so near it as to be struck by the overhang of some part of the train.
The trial judge refused a nonsuit and direction, and allowed the case to go to the jury on the theory that they might be able to work out some negligence on the part of the railroad company from the testimony. He charged, of course, the rule laid down by the federal statute with respect to contributory negligence not being a bar. If the workmen's compensation law of this state applied, the case would doubtless be one for an award of compensation. If the common law of master and servant applied, there would be no case for a jury. The question before us is whether there was a case for the jury under the federal statute. The charge of the trial court was rather indefinite on the matter of negligence, and we are unable to find that any theory of negligence was specifically laid before the jury with the single exception of running the train on an unusual track without notice to deceased. He said: "The plaintiff's claim is that the train went over on the other track and traveled on a track that was not the usual track to travel on. There is testimony in the case that instructions were given to the deceased that trains might come from any direction, so the defendant says that was not negligence. The defendant says that those instructions were disobeyed by this deceased, who had been there for a period of two years and more. You must determine these questions, and it is for you to say what the verdicts shall be in this case from the evidence as you have it."
The complaint charged a great many forms of alleged negligence, but as to most of them there is no evidence upon which to found them. The specific allegations are (1) the defendant operated the train without due care; (2) the defendant operated an eastbound train on the westbound track without advising plaintiff's intestate of any change in the running of the train; (3) the defendant failed to observe the standards, rules and regulations of the interstate commerce commission. Of this there is no evidence: (4) that the defendant ...