On appeal from the Supreme Court, whose opinion is reported in 111 N.J.L. 208.
For the appellants, Collins & Corbin.
For the respondent, Edward M. Salley and Victor Ruskin.
The opinion of the court was delivered by
WELLS, J. This appeal is from a judgment of the Supreme Court affirming a judgment of the First District Court of Jersey City in favor of the plaintiff-respondent (hereinafter called the plaintiff) and against the defendants-appellants (hereinafter called the defendant).
It appears from the stipulations of facts and testimony that the plaintiff's automobile was being driven at a reasonable rate of speed, at three-thirty A.M., when it was misty and foggy, along a public highway in the village of Waverly and State of New York, and that the said automobile was damaged by its colliding with a concrete signal tower, erected by defendant in the center of said public highway, a few feet in front of the defendant's railroad tracks which crossed the highway at that point at grade. The signal is of a type known as a "banjo light," consisting of a concrete tower supporting lights, known as "flashers," which light up only at such times as a train approaches the crossing.
The amount of damage was admitted. The basis of plaintiff's action is that the structure was maintained by the defendant in a negligent manner, that is, that the failure to equip the tower with a warning light when trains were not about to cross the highway made it a nuisance and the defendant liable.
The defense was that the construction and maintenance of the structure was legally authorized by the public service commission of New York and the municipal authorities of the village of Waverly, and that the tower was, therefore, lawfully upon the highway and that defendant cannot be held liable for its failure to keep the same lighted at night.
At the conclusion of the trial (which was by the court without a jury), counsel for the defendant moved for a direction of a verdict. Decision was reserved but, after briefs had been submitted, judgment was rendered in favor of the
defendant. Thereafter the plaintiff obtained a rule to show cause, which was made absolute and the previous judgment in favor of the defendant was vacated by the trial court and judgment entered for the plaintiff for the amount stipulated as the damage sustained.
The defendant complains of this, on the ground that if the judgment was to be set aside it was entitled to a new trial.
We find no merit in this contention. All the evidence in the case, other than certain questions as to the law involved, had already been submitted to the court by stipulations, which could not be changed by another trial of the cause, and the court, after reviewing the evidence presented, decided that it had reached an erroneous conclusion; and on the same evidence ordered judgment in accordance with that view. ...