On appeal from the Supreme Court.
For the appellants, Hobart & Minard (George S. Hobart and Ralph E. Cooper, of counsel).
For the respondent, E. Robert Coven.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. On January 23d, 1929, Albert Belperche, Jr., aged six, the plaintiff's intestate, was struck and killed by a locomotive of the defendant railroad company. Suit was brought by his administrator ad prosequendum for the damages suffered and a judgment found by the jury in favor of the plaintiff and against the defendants in the sum of $15,000. This verdict, on the argument of a rule to show cause, was reduced by the trial judge to $4,500 which the plaintiff accepted.
These are the facts: The defendant Erie Railroad Company maintains a station for train stops at Glen Rock, New Jersey. At or near this point there is a roadway across the two tracks of the railroad company, at grade, which pedestrians in this area, traveling easterly or westerly, must use.
Just prior to the accident an outbound train had stopped at the Glen Rock station, the engine and tender of which
blocked the grade crossing. No gates are used to protect the crossing. The Erie Railroad Company, however, employs a flagman at the crossing and a wig-wag system with a bell. At this juncture, the plaintiff's intestate was on the south crosswalk and east of the outbound train, that is, on its right-hand side and in a place of safety. As the outbound train started up and cleared the crossing, this child, in company with other children, started across the grade crossing using the said southerly crosswalk and as he reached the center of the other, or inbound track, he was struck by an incoming train, receiving injuries from which he died. The engine of this train was operated by Edward Monroe, engineer, the other defendant in this case.
The defendants-appellants come into this court seeking a reversal of this judgment and write down six grounds of appeal which will be treated in the order presented.
"1. The trial judge should have directed a verdict in favor of appellants because the negligence alleged in the complaint was not the proximate cause of the death of the plaintiff's intestate, and there was no evidence of any act of omission or commission on the part of the appellants which was the proximate cause of his death."
The negligence charged in the complaint is that "the defendant company did not give the statutory signal of the approach of the train * * * the wig-wag signal and its accompanying bell were not in good and proper order and were not operated or operating at the time of the approach" of the train, &c.
Now negligence may be affirmative or negative in character -- by direct act or by failure to act -- by commission or omission. In this case there was a plentitude of testimony that the operator of the incoming train neither sounded the bell nor blew the whistle; testimony also from which a jury might have concluded that the so-called accompanying bell on the swinging arm alongside the railroad right of way was not sounded. On the other hand, there was testimony on the ...