On appeal from a judgment of the Supreme Court.
For the appellant, Walter S. Keown (George D. Rothermel, of counsel).
For the respondent, Starr, Summerill & Lloyd (Alfred E. Driscoll, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. These cases are here on appeal from a judgment of the Supreme Court affirming (by an equally divided court) judgments of nonsuit entered by the Salem County Circuit Court on the motion of the defendant railroad. The cases were tried together and were consolidated
for the purpose of appeal, since they arise out of the same occurrence and present the same legal and factual questions.
The record discloses that the plaintiffs' intestates were employes of an expressman, and in pursuance of their duties as such employes were on one of his trucks which was traveling on Griffith street in the city of Salem, and were riding on the extended tailboard of the truck, when they were thrown off as the truck crossed the tracks of the defendant railroad, striking their heads on the ground and causing injuries from which they died shortly thereafter.
It appears that at the point where they were thrown off, the defendant company maintained a railroad crossing over its tracks where they crossed Griffith street in a built up residential and industrial section of Salem; that the tracks had been authorized by an ordinance of the city, which ordinance, like paragraph 26 of Pamph. L. 1903, p. 659, imposed the duty on the defendant railroad to keep in repair such crossing so that public travel thereon should not be impeded thereby.
The motion for nonsuit was grounded upon the contentions: (1) no evidence of defendant's negligence, and (2) no evidence of negligence which was the proximate cause of injury to plaintiffs' intestates.
The trial judge nonsuited because he thought that "it had not been proved that the railroad company did anything or failed to do anything that could be considered the proximate cause of the accident." In so holding we believe the learned trial judge fell into error, for the testimony, as we see it, required the submission of the case to the jury.
The testimony, while conflicting in some particulars, nevertheless tended to show that the truck upon which plaintiffs' intestates were employed was proceeding along the highway at about twelve or fifteen miles an hour; that they were riding on the tailboard which was designed to be, and was, supported straight out from the body of the truck by a chain which ran from the corner of the body across the tailboard to the sides of ...