On appeal from the District Court.
For the appellant, William A. Barkalow.
For the respondent, Irving Charles Picker.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PARKER, J. This is defendant's appeal from a judgment in favor of the plaintiff in the District Court entered upon the verdict of the jury. The case arises out of an accident at a railroad crossing. The grounds of appeal are three in number: "(1) denial of motion for nonsuit; (2) direction of verdict against the defendant on its counter-claim; (3) the court erred in not rendering a verdict for the defendant against the plaintiff of no cause of action."
Ground No. 3 is not very intelligible and, we think, futile. The verdict was rendered by the jury, not by the court; and it is elementary that error does not lie on the verdict of a jury as a general proposition.
The other two grounds we proceed to consider.
The circumstances of the accident were unusual. It occurred at a country grade crossing in Monmouth county, the railroad train operated by the defendant company, running into plaintiff's automobile which had stalled while crossing the track or tracks. The case shows that the accident occurred in broad daylight, that there was a clear view in both directions for a long distance, and the evidence tends to show that after the plaintiff's car stalled, there was an interval of some ten minutes or so before any train arrived, and that in that interval the plaintiff and others, who came to his assistance, made futile efforts to start the stalled engine and also to push the car off the track, but without success; and that one or more of those who were helping attempted to signal the approaching train but failed to draw the attention of the engineer in time for him to stop the train before striking the automobile.
The amended state of demand alleged that the automobile became stalled on the crossing and that the defendant's train ran into it because of negligence in failing to heed the warning of the plaintiff and others, in failing to observe the car stalled on the tracks, in failing to stop before striking the car, and in failing to keep a proper lookout, &c. The counter-claim, which the judge directed the jury to ignore, was that plaintiff negligently operated the car so that it struck the railroad train and did damage thereto and to other appliances of the defendant.
In some of its aspects the case will be seen to be quite similar to the case of Taylor v. Lehigh Valley Railroad Co., 87 N.J.L. 673, but it differs first in that there was no claim of a defective crossing as in the Taylor case; and secondly, in the circumstances under which the plaintiff's car became stalled. What happened, according ...