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defendant, which were laid in the center of "saw lights way up on the hill," and did not the avenue. Plaintiff was accustomed to know what lights they were. Prudence repass along that avenue, and knew the loca quired him then to wait a sufficient time to tion of the tracks. Before he had crossed enable him to observe whether the lights the tracks, he was struck by a car going which he saw were those of the street lamps westerly on the west-bound track (which on the side of the avenue, or were those of a was the more northerly of the two tracks), car in the middle of the avenue. Without and injured. From the point where the col- waiting, he proceeded to cross. When he lision occurred, the avenue, in an easterly says that at that time he could see no troldirection, was straight for a long distance, ley car in sight, he conclusively establishes There was an ascending grade in that direc- that he did not then make the observation tion of about 212 per cent. to a summit 650 which duty required of him, because, if he or 700 feet distant. Beyond that summit had done so, he would undoubtedly have there was a descending grade of about the discovered the approaching car, and have same rate. There were lights along one been able to avoid the collision. The case, side of the avenue at rather long intervals. in this aspect, falls within the doctrine of The car which collided with plaintiff car 2. R. R. y. Righter, 42 N. J. Law, 180. ried a headlight at the top, and its interior Upon this view, it was error in the trial was also lighted. From these physical facts, judge to refuse to nonsuit the plaintiff; and, it is obvious that the lights of the approach- | there being nothing in the evidence aftering car could be seen from the point of the ward taken to change the situation as it collision for over 600 feet, and that the appeared at the close of the plaintiff's case, headlight of the car could be seen for a

the judgment cannot be sustained, and must much longer distance. In attempting to be reversed. cross the tracks, a duty was imposed on the plaintiff to take such care for bis safety as reasonable prudence required under the pe

(68 N. J. L. 624) culiar circumstances. He was bound to use

BUCKLEY V. HANN et al. his powers of observation to discover the

(Court of Errors and Appeals of New Jersey. approaching car, and to exert his judgment

March 2, 1903.) how to avoid the danger of a collision.

MECHANIC'S LIEN–ABROGATION OF CON. What he did do, may be shown by the fol

TRACT. lowing excerpts from his testimony: "Q. 1. The trial court properly left it to the jury When you started to cross the track, did to determine whether, after a building contract you see any trolley ? A. I saw lights way

had been filed in the clerk's office, it had been

subsequently abrogated, and a new parol con. up on the hill. I could not see what light it

tract substituted for it; instructing the jury was.

Q. What track did you stand that, if the written contract had been thus on? A. On the south side when I started. abrogated, the land and building'were subject,

under the mechanic's lien law, to a lien for Q. When you started to cross? A. Yes, sir.

work done by a subcontractor. Q. When you started to cross, was there a

(Syllabus by the Court.) trolley car in sight? A. None that I could see. Q. What was it that first drew your

Error to Supreme Court. attention? A. The light I see on the track.

Action by Elwood Buckley against ClarQ. What did you do then? A. I stepped as

ence A. Hann and others. Judgment for de

Affirm. quick as I could. I thought it was the trol.

fendants, and plaintiff brings error.

ed. ley. I stepped as quick as I could." . As the plaintiff did not pause to discover what G. A. Bourgeois, for plaintiff in error. the light which he saw up on tbe hill was, Thompson & Cole, for defendants in error. or whether it was the light of an approach. ing vehicle, he did not place himself in the VAN SYCKEL, J. The defendant Burkposition of one who, having occasion to cross hard entered into a written contract with the the track of this sort, and having observed defendant Hann to erect a building upon the an approaching car, exercises his judgment land of the former. The contract was filed as to his being able to cross safely, without as required by law, to protect the owner risk of collision-a situation which has been

against liens other than that of Hann. This dealt with in many

Consolidated suit was brought to charge the building and Traction Company v. Lambertson, 59 N. J. lands of Burkhard with a lien for work done Law, 297, 36 Atl. 100; Id., 60 N. J. Law, on the building by Buckley, the plaintiff, 452, 38 Atl. 683; Newark Passenger Railway who was a subcontractor. The plaintiff v. Block, 55 N. J. Law, 605, 27 Atl. 1067, claimed on the trial of this cause that the 22 L. R. A. 374; Atlantic Coast Electric Rail

written contract was abrogated, and a new road Co. v. Rennard, 62 N. J. Law, 773, 42 parol contract was entered into between Atl. 1041. Whether or not a passenger in Burkhard and Hann, under which the buildsuch cases has exercised a prudent care for ing was erected. On the 17th of October, his safety must generally be a question for 1899, Hapn signed a paper by which he sura jury. But by his evidence the plaintiff put | rendered all his rights under the contract, hipiself in another category. He admitted and authorized Burkhard to let the work to that when he started to cross the tracks he any other person, stating in it that the con

cases.

cause.

sideration was that Burkhard had released that the promise to him was unconditional him. He handed this release to Shumway, (2) Whether the promise was absolute or the architect. Shumway testified that he conditional is immaterial. It was without had no authority from Burkhard to release consideration, and void. Hann was under a Hann, or to accept Hann's release. Burk written contract to perform the work for a hard testified that he gave Shumway no stipulated price, and, so long as that consuch authority, and that he did not know of tract was in force, there was no legal liathe execution of the release by Hann until a bility on the part of the owner to pay the month or six weeks before the trial of this extra sum to Hann, nor any right on the part

The plaintiff, on January 15, 1900, of the plaintiff to retain it in the hands of gave notice in writing to Burkhard to re the owner. tain $540 of the contract price under the con As before stated, the question whether the tract filed, alleging that Hann owed him that original contract was abrogated was properly sum for work done on the building. This submitted to the jury, and no error in law was a clear recognition of the existence of appears in the trial of the cause. the written contract.

The judgment should be affirmed.
Burkhard also offered in evidence four cer-
tificates given by Shumway, the architect, to
Hann, for the several payments as they be-

(68 N. J. L. 622) came due to him according to the terms of

WEEKS V. BOARD OF CHOSEN FREEthe contract as filed, for which Hann gave

HOLDERS OF COUNTY OF his receipt. This testimony was objected to

SOMERSET. by the plaintiff, but it was clearly competent (Court of Errors and Appeals of New Jersey. upon the question whether there had been

March 2, 1903.) any agreement between the parties to abro

BRIDGE-ACCIDENT TO PEDESTRIAN. gate the contract. It was, therefore, a ques

1. The mere fact that a person traveling uption of fact whether the work was done un

on the highway, after dark, mistakes the wing

wall of a bridge (which carries the highway der the written contract as filed, or under a over au intersectiug stream) for a footpath, substituted parol contract. The trial court and, after getting upon it, falls off, and is inproperly left that question to the jury, ex

jured, affords no ground for concluding that pressly instructing it that, if the jury found

the bridge was improperly constructed.

(Syllabus by the Court.) that the work was done under the original contract, the plaintiff could not recover, but,

Error to Supreme Court. if it was done under a new and verbal con

Action by Granville M. Weeks against the tract, the plaintiff was entitled to a verdict

Board of Chosen Freeholders of the County for the amount shown to be due him for

of Somerset. Judgment for defendant, and

Affirmed. work done upon the building. Hann testi- plaintiff brings error. fied on the trial that, after the written con J. A. Beecher, for plaintiff in error. R. V. tract was executed, he discovered he had Lindabury, for defendant in error. made a mistake in his estimate to the extent of $475, of which he informed Burkhard, GUMMERE, C. J. The plaintiff in error and that Shumway told him that Burkhard brought this suit to recover for personal inwould pay him $475 in excess of the contract juries received by him while crossing a price. The plaintiff afterwards called Shum- | bridge erected and maintained by the defendway as a witness, who testified that Burk ant in error over a small stream which interhard said to him that he was sorry to see sected the road along which he was travelHann lose any money, and, if he completed ing. The accident occurred in the evening. the work satisfactorily, he would make up Owing to the darkness, the plaintiff in error the difference to him, and that he (Shumway) mistook one of the wing walls of the bridge then told Hann that he had better do the for a flagged footpath for pedestrians; stepbest he could to make the work satisfactory, ped upon it, and walked along it until he because, if he completed it as he agreed to, reached its end; and there either stepped off Burkhard would make up the difference to or fell off, and was injured. The top of the him. After this testimony was given by wing wall at the point where the plaintiff in Shumway, the plaintiff recalled Hann as a error fell was about 3 feet above the surface witness, and asked him the following ques of the roadway, and at the other end was tion: “Question. Mr. Hann, Mr. Shumway about 914 inches. At what point he got upon the agent or architect for the building of this it does not appear. house, states that it was only a conditional The liability of the board of freeholders to agreement that you should get this $475 ad answer in damages for injuries received by ditional, conditioned upon your going ahead a person in crossing a county bridge is a statand completing the work satisfactorily, and utory one, and is limited to such injuries as So on. Is that correct?” This question was directly result from the neglect of the board objected to by the defendant's counsel, and to properly “erect, rebuild, or repair" such overruled. Exception was taken, and error bridge. Gen. St. p. 307, § 9. In the present assigned. The question was objectionable case the ground upon which the plaintiff in for two reasons: (1) It was a mere attempt error rests his right to recover, as stated by to have Hann repeat his previous statement counsel in his brief, is that in building the

wing wall of the bridge in question the freeholders were negligent, because they did not place a railing, or some other sufficient barrier, upon the coping of the wall, for the purpose of preventing people from going upon or over it. The only evidence that the presence of a railing or other barrier upon the wing wall of the bridge was necessary, in order to make it reasonably safe for the traveling public, was the fact that at one point the wall was low enough to permit the plaintiff in error to readily get upon it. But improper construction was no more shown by this fact than it would have been by proving that the freeholders had placed a railing or other barrier upon the top of the wing wall, and that the plaintiff in error, mistaking the coping for a flagged footway for the use of travelers, and, unable to discover the railing by reason of the darkness, had received injury by coming in contact with the railing while attempting to get upon the coping. Mere proof of the happening of an accident raises no presumption of negligence.

The trial court, at the close of the testimony, properly directed a verdict for the defendant. The judgment under review should be affirmed.

slightly over this edge of the platform, and it was left to the jury to say, in case they should find that plaintiff was walking within the line of the platform when she was struck, whether it was negligence in the compauy to have constructed its platform in such close proximity to the rail. It was held, in review, that no negligenre was shown, and that the charge, in this respect, was erroneous. (Syllabus by the Court.) Error to Supreme Court.

Action by Mary T. Dotson and husband against the Erie Railroad Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Corbin & Corbin, for plaintiff in error. Warren Dixon, for defendants in error.

(68 N. J. L. 679)

DOTSON et al. v. ERIE R. CO. (Court of Errors and Appeals of New Jersey.

March 2, 1903.) CARRIERS-INJURY TO PASSENGER-DEFECTIVE PLATFORM-CONTRIBUTORY

NEGLIGENCE. 1. A passenger at a railway statiou may law. fully use the platform, or any part of it, for the purpose of it to and from he company's trains, or for any other lawful purpose connected with his journey; but, in order to maintain a liability against the company for injury received from passing trains, his use of such platform must be limited to the purposes for which it is manifestly adapted.

2. It is the duty of the company to so construct its platform that it shall be reasonably safe for use by passengers, and to locate it in such proximity to the railroad tracks that it will afford a safe and convenient means of exit to and from its cars for its passengers, including those who may be aged and infirm.

3. While trains are passing such platform, or are likely to pass, waiting passengers must keep such a distance from the edge of the platform next to the rail that they will not be struck by such projections as usually attach to ordinary trains. Under such circumstances, the edge of the platform is usually a place of danger, and if a passenger, while occupying such a place, is struck in this way, the injury canvot ordinarily be attributed to negligent construction by the company.

4. In the present case the plaintiff was walking along the platform, which was on a level with the top of the rails, toward the station, in order to purchase a ticket. She suddenly diverged in her course, toward the rail, so that she was struck from behind by the bumper of a slowly moving train, just pulling into the station, on which she was to take passage, and was injured. The platform was constructed of crushed stone, which extended to the line of planking, 18 inches wide, along the nearest rail. The trial judge treated the outer line of the stone surface as the edge of the platform. The evidence showed that the bumper projected

HENDRICKSON, J. This writ brings up for review a judgment of the Supreme Court entered upon a verdict rendered at the Bergen circuit. The defendants in error, who were the plaintiff's below, and are husband and wife, brought suit to recover damages for personal injuries to the wife, resulting from her being struck by the bumper of a locomotive engine of the defendant company at its station in Englewood, in the county of Bergen. For convenience, I will hereafter refer to her as the plaintiff below. The grounds of recovery averred in the pleadings were twofold. One was the negligent operation and management of the cars and loco. motive of the defendant while running along the platform of the station, under the existing conditions, and the other was negligent construction of the platform, in locating it so near the tracks that its locomotives and cars would overlap the platform, and strike passengers walking along the same, so that on the occasion referred to the plaintiff was struck by one of the defendant's locomotives while she was walking along the edge of the platform, and was at the time in the exercise of due care. There were motions to nonsuit and to direct a verdict on the ground that no negligence was proved, and on the further ground of contributory negligence, which were overruled, and exceptions were allowed and duly sealed.

The learned judge, at the close of his charge, directed the jury that, in case they found a verdict for the plaintiffs, they should find specially whether it was based upon the negligent construction of the platform, or upon the negligence of the engineer in the management of his engine, or upon the negligence of both. In returning their verdict for the plaintiffs, the jury based their finding upon negligent construction, and not upon negligence on the part of the engineer. Thus all questions relating to negligent manage ment of the company's train are eliminated from this discussion, We may appropriately deal with the other questions under the exceptions taken to the charge of the court, and to the refusal to direct a verdict.

Some facts should be stated, to properly illustrate the situation: The general direc

tion of the road at this point was north and jury that, if they found that at the time the south. The station was on the easterly side plaintiff was struck "she was upon the of the tracks, the west-bound track being the planking alongside of this railroad, then the nearer one to the station. The platform of verdict should be for the defendant, beca ase the station was on a level with the top of it is evident, and must have been evident to the rails of the tracks. It consisted of flag every adult person, that that planking was ging about the station, and then of crushed not intended for persons to walk upon," etc. stone as it approached the track. Immedi He had further charged that “if she were not ately along the rails was planking 18 inches upon the planking, but were upon the gravel wide, and within the rails and between the walk or platform, as it is called, then the two tracks the crushed stone continued, so question for you to decide would be whether that the whole was on a level from the sta or not she was guilty of negligence in going tion to the east-bound track; thus serving so near as that to the rail, under the circumas a means of ingress and egress to and from stances of the case.” It should be observed the trains on either of the tracks. The plat that there was no evidence in the case which form is thus extended to the east-bound characterized the platform as only extending track for a space up and down the tracks in to the planking next to the rail. Nor was front of the station of 300 feet. The whole there any evidence that the platform was platform is about 685 feet long, and south of not properly constructed, or that the planking the station there is a driveway for carriages was intended for a different use than the along the platform, and 4 feet and a half be rest of the platform. The trial court further low its level. The width of the platform at charged that, if the jury found upon both of the station is about 50 feet, and at the south these questions in favor of the plaintiff, then end of the station the rear line of the plat "was it negligence in the company itself to form curves toward the tracks in a southerly have that gravel platform approach so near direction until it is narrowed to a width of to the rail that passengers would be likely 10.7 feet, and then runs southwardly of the to be endangered even if they exercised reasame width, in rectangular form, along the sonable care in the use of the platform, and tracks, a considerable distance. The acci did this accident spring out of that kind of dent occurred September 3, 1901, about 7:30 negligence on the part of the company o'clock in the evening, and the place where it

*?"

“Does the evidence satisfy you happened was well lighted by electric lights. that the company failed to take proper care The plaintiff came from the town, and enter and that means a high degree of care--for ed the platform not far from its southerly the safety of persons who came there as pasend, and was on her way to the station to sengers, when they constructed that platbuy a ticket to her home, in Highwood, a form so close to the rails that there would be station above. She had walked two or three danger that persons in the prudent use of the hundred feet northwardly, and, when she platform would be struck by any part of the reached a point variously estimated at from engine?” The jury was instructed that if 50 feet to 200 feet from the station, she was they answered this question, as well as the struck by the bumper of the engine attached previous questions, in favor of the plaintiff, to the train she was about to take. It was then the verdict ought to be for the plainmoving slowly in the same direction she was tiffs. Exception to these instructions were walking, at the rate of 3 or 4 miles an hour; duly sealed, and error has been assigned having slowed up to allow the east-bound thereon. train to pull out of the station ahead of it. Even conceding for the present that the The plaintiff was walking in about the cen planking along the east rail was not a part ter of the platform, until a few moments be of the platform, and that the graveled or fore she was struck, when she diverged in stone surface along the planking is to be her course toward the rail. She testified that regarded as the platform proper, we are unshe was crowded toward the rail by passen able to concur in the view that any actiongers who alighted from the down train, but able negligence is shown by reason of its the other witnesses (her own as well as the proximity to the tracks. Admittedly, it company's) showed that in this she was prob would then be a distance of 18 inches from ably mistaken. But the fact is not material the nearest rail. The evidence was that the to the points to be discussed. The engineer, engine in question was similar to the other upon seeing her turn toward the rail, gave engines used on the road, and that the prothe danger signal and put on the emergency jection of the bumper was the same in all brake, but too late to avoid the striking of of them. The engineer testified that the the plaintiff about the hip, and throwing her bumper extends a trifle beyond the planks down upon the platform, causing serious (he could not say how much); that the plain. bruises and injuries. The bumper which tiff must have been about on the edge of struck the plaintiff is a square piece of tim the plank farthest from the rail when she ber, rounded over at the ends, to which the was struck; that the bumper, as the witness cowcatcher attaches; and it projects to the stated it, “just glanced her," knocking her side far enough to cover the head of the cyl off sideways. In order to sustain the theory inder, which it is intended to protect.

of the charge, it must be assumed, we think, The learned trial judge had charged the that there is an implied invitation by the

an

company to its passengers to stand upon any getting on or off a train, but while he may part of its platform-even at its very edge be waiting upon the platform, or engaged in when its trains are passing, and with it an walking upon it, to keep such a distance obligation to exercise reasonable care for from the edge of it next to the rail that he their safety when they may thus expose

would be beyond the reach of the projecthemselves to danger. In order to sustain a tions of ordinary trains. And the company claim of liability against the owner or oc is not liable for injury to a passenger who cupier for the injury sustained in the use of suffers himself to go beyond such a limit, and his premises where there is no express invi is injured by a passing train. It was held tation, it must appear that there was in C., B. & Q. R. R. v. Mahara, 47 Ill. App. implied invitation; that is, that the person 208, that, where a platform is wide enough injured "entered the premises because he was to give room for safety, the fact that it is so led by the acts or conduct of the owner or built that the edge nearest the track cannot occupier to believe that the premises were be safely occupied as a standing place while intended to be used in the manner in which trains are passing is not negligence. In he used them, and that such use was not only | Matthews v. Pa. R. Co., 148 Pa. 491, 24 Atl. acquiesced in, but was in accordance with the 67, it was held that where a passenger waitintention or design for which the way or ing for a train at a station, the platform of place was adapted, and prepared or allowed which is properly constructed, stands so near to be used.” Sweeney v. Old Colony R. Co., the track as to be struck and killed by the 10 Allen, 364, 87 Am. Dec. 644; Phillip v. bumper of a passing locomotive, the railroad Library Co., 55 X. J. Law, 307, 27 Atl. 478; company is not liable. See, also, McGeehan Turess v. N. Y., Susq. & West. R. Co., 61 N. v. Lehigh Valley R. Co., 149 Pa. 148, 24 Ati. J. Law, 314, 40 Atl. 614. Applying this test 205; Pa. R. R. v. Bell, 122 Pa. 58, 15 Atl. to the circumstances here involved, we must 561. It has also been held that a person has find that the plaintiff was using the extreme a right to walk on an elevated plank walk edge of the platform, near the rail, for a constructed by a railway company alongpurpose entirely foreign to the intention and side of its track at a station for the use of purpose of the company as to its use, and passengers and the public, and to suppose that there was no evidence to show that such himself in safety while occupying such walk a use was ever permitted or acquiesced in at a point beyond the projection of all orby the company. It is undoubtedly a settled dinary trains, and, if he is injured by a brake rule that a railroad company is under a duty which projected more than the ordinary disto exercise ordinary and reasonable care to tance, the company is liable, etc.; it being so construct and maintain station buildings, the duty to warn the passenger as against platforms, and approaches that they shall be extraordinary projections. Sullivan v. Vickssafe for use by passengers. Elliott on Rail- | burg, S. & P. R. Co., 39 La. Ann. 800, roads, 1590. But this use is to be exercised 2 South. 586, 4 Am. St. Rep. 239. Upon in conformity to the manifest purpose for principle somewhat similar, it was held that which the structure in question is adapted. wbere an accident occurred to a passenger And so a railroad company is only required by his falling into the opening between platto build platforms of sufficient dimensions to form and car, which had a width of from accommodate passengers getting on and off 1142 to 18 inches, the opening itself was not at their stations. Harkey V. R. & P. Ry. evidence of negligence. Fox 1. Mayor, etc., Co., Fed. Cas. No. 6065; Taylor v. Penn. R. of New York, 53 N. Y. St. Rep. 902, 70 R. (C. C.) 50 Fed. 755; Moreland v. Boston, Hun, 181, 24 N. Y. Supp. 43. Under simietc., R. R., 141 Mass. 31, 6 N. E. 225; Kelly lar circumstances, the plaintiff, without barV. Manhattan Ry., 112 V. Y. 440, 20 N. E ing hold of the railing, and without looking, 383, 3 L. R. A. 74; Lafflin v. Buffalo R. Co., stepped out, and fell between car and plat106 N. Y. 136, 12 N. E. 599, 60 Am. Rep. 433. form. There was no proof that the plat. It is manifest that this duty requires the form was not constructed in the ordinary railroad company to construct its platform way, nor that the space was greater than the sufficiently near to the rails that it will af exigencies of business required. There was ford to passengers, including the aged and no evidence of any previous accident. Held intirm, a safe exit to and from the trains. 10 evidence of negligence by the company, And it is a matter of common knowledge and no basis for recovery. Laffilin y. Bufthat, in performing this duty, the platforms falo, etc., R. R., 106 N. Y. 136, 141, 12 N. along the best regulated railroads are built so E. 599, 00 Am. Rep. 433. near the rails that the projections from the There is another reason why we think the engines and the cars will overlap, to some question of negligent construction should not extent, the edge of the platform. While the have been left to the jury, and that is the estreme edge of the platform is perfectly entire absence of proof that the construction safe for passengers when occupying it for was faulty, as not being in conformity to the the purpose to which it is manifestly adapted, usual mode of construction adopted by wellit is a matter of common knowledge that it regulated railroads or otherwise. Negliis a place of danger when occupied while gence must be proved.

As was said by trains are passing or are likely to pass. It Bramwell, B., in Cornman V. The Eastern is the plain duty of the passenger when not Counties R. Co., 4 Hurlst. & N. 781: "It is

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