On appeal from a judgment of the Supreme Court.
For the plaintiffs-appellants, Parsons, Labrecque & Borden.
For the defendant-respondent The Pennsylvania Railroad Company, John A. Hartpence.
For the defendant-respondent New York and Long Branch Railroad Company, Applegate, Stevens, Foster & Reussille.
The opinion of the court was delivered by
DONGES, J. The plaintiffs-appellants are the executors of Samuel Rothstein and their action is under the Death act against the New York and Long Branch Railroad Company, owner of the station and railroad tracks at Long Branch, and The Pennsylvania Railroad Company, operator of a train over said tracks which ran over and killed Rothstein at the Long Branch station. Trial was had at the Monmouth Circuit and a judgment for defendants was directed by the trial judge.
Due to the death of the court reporter after the trial, we do not have before us a stenographic transcript of the testimony. Instead, the parties have entered into a stipulation setting out the substance of the evidence given at the trial by the various witnesses.
Plaintiffs' testate was the principal owner of a factory at Long Branch and received therefrom a salary of $15,000 a year. The most favorable version of the evidence for the plaintiffs' case would appear to be that on the morning of April 22d, 1935, at seven o'clock, he went to his factory and talked to a foreman over the day's work. He stated that he was going to New York on the seven-twenty train. He went from the factory to the station, purchased a newspaper and walked toward the train which was standing at the platform receiving passengers. As he neared the train, he stumbled or tripped over some loose bricks in the paving of the platform and pitched headlong under the train. Instantly the train started to move and he was decapitated.
No question is raised as to the adequacy of the proofs on the question of negligence. It seems to be conceded that
there was proof of the faulty condition of the platform and of the manner of decedent's death sufficient to raise a jury question.
There was evidence, uncontradicted, that decedent had not purchased a ticket at the ticket office on the morning of the occurrence. In his clothes was found a wallet containing a commutation ticket between Long Branch and New York issued to Milton Rothstein, son of the deceased. This ticket was non-transferable and could be used only by Milton. There was no money in the wallet. No complete search of decedent's pockets was made, and therefore there is no evidence as to what else he ...