On appeal from the Supreme Court.
For the appellant, Bourgeois & Coulomb.
For the respondents, Samuel Moore and Burton A. Gaskill.
The opinion of the court was delivered by
HETFIELD, J. This is an appeal by the defendant from a judgment based upon a general verdict against it in an action to recover damages for personal injuries sustained by the infant plaintiff, and for consequential damages to his mother, as the result of the infant coming in contact with an electrified third rail maintained and controlled by the defendant. The plaintiff, an eight-year-old boy at the time of the accident, September 6th, 1933, while crossing the defendant's tracks at a point where they intersect the Turnpike road of Pleasantville and Atlantic Turnpike, or Plank Road Company, tripped and fell against the rail. There was a break in this rail where the Turnpike road is intersected by the tracks of the defendant, so that it would not interfere
with persons having occasion to cross the tracks while traveling on the Turnpike road.
This is the second appeal involving this case, the previous one being from a judgment entered upon a directed verdict in favor of the defendant, which was reversed, and venire de novo awarded. Miller v. Pennsylvania-Reading Seashore Lines, Inc., 117 N.J.L. 152.
The main question involved in the present case, is whether the plaintiff was actually on the turnpike crossing, or on the private right-of-way of the railroad company, when the accident occurred.
The record shows, without contradiction, that the Turnpike Company was incorporated by an act of the legislature (chapter 270, laws of 1864, page 429), whereby it was authorized to construct a turnpike or plank road, one hundred feet wide, from Pleasantville to Atlantic City. The act provided that the road should be at least thirty feet in width, and that at least sixteen feet thereof should be sufficiently bedded and faced with stone or other material to make a solid and even road at all seasons of the year. It was further provided, that the company should not construct the road until the owners of the land over which same should pass were paid all damages sustained, and a method was provided for assessing damages when the company and the owners were unable to agree upon the amount thereof.
The appellant presents two grounds of appeal upon which a reversal is sought, both relating to the charge of the trial court. The first is that the court erroneously instructed the jury as follows: "I mean the so-called right of way of the turnpike, one hundred feet in width, granted by the act of the legislature of 1864. Our Court of Errors and Appeals has held -- and I shall undertake from memory substantially to quote what the court held -- that the charter of this Turnpike Company gave to it an easement of one hundred feet in width for the benefit of the public and that its right of way extends the full width of one hundred feet, and not merely the part which is worked or actually traveled," and the second, that the court erred in refusing to charge the following request
of the appellant, viz.: "Plaintiffs have no right to recover if the infant plaintiff was on the railroad right of way and outside of the line of the ...