defendant, which were laid in the center of the avenue. Plaintiff was accustomed to pass along that avenue, and knew the location of the tracks. Before he had crossed the tracks, he was struck by a car going westerly on the west-bound track (which was the more northerly of the two tracks), and injured. From the point where the collision occurred, the avenue, in an easterly direction, was straight for a long distance. There was an ascending grade in that direction of about 21⁄2 per cent. to a summit 650 or 700 feet distant. Beyond that summit there was a descending grade of about the same rate. There were lights along one side of the avenue at rather long intervals. The car which collided with plaintiff carried a headlight at the top, and its interior was also lighted. From these physical facts, it is obvious that the lights of the approaching car could be seen from the point of the collision for over 600 feet, and that the headlight of the car could be seen for a much longer distance. In attempting to cross the tracks, a duty was imposed on the plaintiff to take such care for his safety as reasonable prudence required under the peculiar circumstances. He was bound to use his powers of observation to discover the approaching car, and to exert his judgment how to avoid the danger of a collision. What he did do, may be shown by the following excerpts from his testimony: "Q. When you started to cross the track, did you see any trolley? A. I saw lights way up on the hill. I could not see what light it was. Q. What track did you stand on? A. On the south side when I started. Q. When you started to cross? A. Yes, sir. Q. When you started to cross, was there a trolley car in sight? A. None that I could see. Q. What was it that first drew your attention? A. The light I see on the track. Q. What did you do then? A. I stepped as quick as I could. I thought it was the trolley. I stepped as quick as I could." the plaintiff did not pause to discover what the light which he saw up on the hill was, or whether it was the light of an approaching vehicle, he did not place himself in the position of one who, having occasion to cross the track of this sort, and having observed an approaching car, exercises his judgment as to his being able to cross safely, without risk of collision-a situation which has been dealt with in many cases. Consolidated Traction Company v. Lambertson, 59 N. J. Law, 297, 36 Atl. 100; Id., 60 N. J. Law, 452, 38 Atl. 683; Newark Passenger Railway v. Block, 55 N. J. Law, 605, 27 Atl. 1067, 22 L. R. A. 374; Atlantic Coast Electric Railroad Co. v. Rennard, 62 N. J. Law, 773, 42 Atl. 1041. Whether or not a passenger in such cases has exercised a prudent care for his safety must generally be a question for a jury. But by his evidence the plaintiff put himself in another category. He admitted that when he started to cross the tracks he

As

"saw lights way up on the hill," and did not know what lights they were. Prudence required him then to wait a sufficient time to enable him to observe whether the lights which he saw were those of the street lamps on the side of the avenue, or were those of a car in the middle of the avenue. Without waiting, he proceeded to cross. When he says that at that time he could see no trolley car in sight, he conclusively establishes that he did not then make the observation which duty required of him, because, if he had done so, he would undoubtedly have discovered the approaching car, and have been able to avoid the collision. The case, in this aspect, falls within the doctrine of 2. R. R. v. Righter, 42 N. J. Law, 180.

Upon this view, it was error in the trial judge to refuse to nonsuit the plaintiff; and, there being nothing in the evidence afterward taken to change the situation as it appeared at the close of the plaintiff's case, the judgment cannot be sustained, and must be reversed.

(68 N. J. L. 624)

BUCKLEY v. HANN et al. (Court of Errors and Appeals of New Jersey. March 2, 1903.)

MECHANIC'S LIEN-ABROGATION OF CONTRACT.

1. The trial court properly left it to the jury to determine whether, after a building contract had been filed in the clerk's office, it had been subsequently abrogated, and a new parol con tract substituted for it; instructing the jury that, if the written contract had been thus abrogated, the land and building were subject, under the mechanic's lien law, to a lien for work done by a subcontractor. (Syllabus by the Court.)

Error to Supreme Court.

Action by Elwood Buckley against Clarence A. Hann and others. Judgment for defendants, and plaintiff brings error. Affirmed.

G. A. Bourgeois, for plaintiff in error. Thompson & Cole, for defendants in error.

VAN SYCKEL, J. The defendant Burkhard entered into a written contract with the defendant Hann to erect a building upon the land of the former. The contract was filed as required by law, to protect the owner against liens other than that of Hann. This suit was brought to charge the building and lands of Burkhard with a lien for work done on the building by Buckley, the plaintiff, who was a subcontractor. The plaintiff claimed on the trial of this cause that the written contract was abrogated, and a new parol contract was entered into between Burkhard and Hann, under which the building was erected. On the 17th of October, 1899, Hann signed a paper by which he surrendered all his rights under the contract, and authorized Burkhard to let the work to any other person, stating in it that the con

sideration was that Burkhard had released him. He handed this release to Shumway, the architect. Shumway testified that he had no authority from Burkhard to release Hann, or to accept Hann's release. Burkhard testified that he gave Shumway no such authority, and that he did not know of the execution of the release by Hann until a month or six weeks before the trial of this cause. The plaintiff, on January 15, 1900, gave notice in writing to Burkhard to retain $540 of the contract price under the contract filed, alleging that Hann owed him that sum for work done on the building. This was a clear recognition of the existence of the written contract.

Burkhard also offered in evidence four certificates given by Shumway, the architect, to Hann, for the several payments as they became due to him according to the terms of the contract as filed, for which Hann gave his receipt. This testimony was objected to by the plaintiff, but it was clearly competent upon the question whether there had been any agreement between the parties to abrogate the contract. It was, therefore, a question of fact whether the work was done under the written contract as filed, or under a substituted parol contract. The trial court properly left that question to the jury, expressly instructing it that, if the jury found that the work was done under the original contract, the plaintiff could not recover, but, if it was done under a new and verbal contract, the plaintiff was entitled to a verdict for the amount shown to be due him for work done upon the building. Hann testified on the trial that, after the written contract was executed, he discovered he had made a mistake in his estimate to the extent of $475, of which he informed Burkhard, and that Shumway told him that Burkhard would pay him $475 in excess of the contract price. The plaintiff afterwards called Shumway as a witness, who testified that Burkhard said to him that he was sorry to see Hann lose any money, and, if he completed the work satisfactorily, he would make up the difference to him, and that he (Shumway) then told Hann that he had better do the best he could to make the work satisfactory, because, if he completed it as he agreed to, Burkhard would make up the difference to him. After this testimony was given by Shumway, the plaintiff recalled Hann as a witness, and asked him the following question: "Question. Mr. Hann, Mr. Shumway the agent or architect for the building of this house, states that it was only a conditional agreement that you should get this $475 additional, conditioned upon your going ahead and completing the work satisfactorily, and so on. Is that correct?" This question was objected to by the defendant's counsel, and overruled. Exception was taken, and error assigned. The question was objectionable for two reasons: (1) It was a mere attempt to have Hann repeat his previous statement

that the promise to him was unconditional (2) Whether the promise was absolute or conditional is immaterial. It was without consideration, and void. Hann was under a written contract to perform the work for a stipulated price, and, so long as that contract was in force, there was no legal liability on the part of the owner to pay the extra sum to Hann, nor any right on the part of the plaintiff to retain it in the hands of the owner.

As before stated, the question whether the original contract was abrogated was properly submitted to the jury, and no error in law appears in the trial of the cause.

The judgment should be affirmed.

(68 N. J. L. 622) WEEKS v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF SOMERSET.

(Court of Errors and Appeals of New Jersey. March 2, 1903.)

BRIDGE-ACCIDENT TO PEDESTRIAN.

1. The mere fact that a person traveling upon the highway, after dark, mistakes the wing wall of a bridge (which carries the highway over an intersecting stream) for a footpath, and, after getting upon it, falls off, and is injured, affords no ground for concluding that the bridge was improperly constructed. (Syllabus by the Court.)

Error to Supreme Court.

Action by Granville M. Weeks against the Board of Chosen Freeholders of the County of Somerset. Judgment for defendant, and Affirmed. plaintiff brings error.

J. A. Beecher, for plaintiff in error. R. V. Lindabury, for defendant in error.

GUMMERE, C. J. The plaintiff in error brought this suit to recover for personal injuries received by him while crossing a bridge erected and maintained by the defendant in error over a small stream which intersected the road along which he was traveling. The accident occurred in the evening. Owing to the darkness, the plaintiff in error mistook one of the wing walls of the bridge for a flagged footpath for pedestrians; stepped upon it, and walked along it until he reached its end; and there either stepped off or fell off, and was injured. The top of the wing wall at the point where the plaintiff in error fell was about 3 feet above the surface of the roadway, and at the other end was about 9 inches. At what point he got upon it does not appear.

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 trav elers, 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.

(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 station may lawfully use the platform, or any part of it, for the purpose of exit to and from the company's trains, or for any other lawful purpose connected with his journey; but, in order 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.

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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 cannot 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

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 company to have constructed its platform in such close proximity to the rail. It was held, in review, that no negligence 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.

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 locomotive 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 south. The station was on the easterly side of the tracks, the west-bound track being the nearer one to the station. The platform of the station was on a level with the top of the rails of the tracks. It consisted of flagging about the station, and then of crushed stone as it approached the track. Immediately along the rails was planking 18 inches wide, and within the rails and between the two tracks the crushed stone continued, so that the whole was on a level from the station to the east-bound track; thus serving as a means of ingress and egress to and from the trains on either of the tracks. The platform is thus extended to the east-bound track for a space up and down the tracks in front of the station of 300 feet. The whole platform is about 685 feet long, and south of the station there is a driveway for carriages along the platform, and 4 feet and a half below its level. The width of the platform at the station is about 50 feet, and at the south end of the station the rear line of the platform curves toward the tracks in a southerly direction until it is narrowed to a width of 10.7 feet, and then runs southwardly of the same width, in rectangular form, along the tracks, a considerable distance. The accident occurred September 3, 1901, about 7:30 o'clock in the evening, and the place where it happened was well lighted by electric lights. The plaintiff came from the town, and entered the platform not far from its southerly end, and was on her way to the station to buy a ticket to her home, in Highwood, a station above. She had walked two or three hundred feet northwardly, and, when she reached a point variously estimated at from 50 feet to 200 feet from the station, she was struck by the bumper of the engine attached to the train she was about to take. It was moving slowly in the same direction she was walking, at the rate of 3 or 4 miles an hour; having slowed up to allow the east-bound train to pull out of the station ahead of it. The plaintiff was walking in about the center of the platform, until a few moments before she was struck, when she diverged in her course toward the rail. She testified that she was crowded toward the rail by passengers who alighted from the down train, but the other witnesses (her own as well as the company's) showed that in this she was probably mistaken. But the fact is not material to the points to be discussed. The engineer, upon seeing her turn toward the rail, gave the danger signal and put on the emergency brake, but too late to avoid the striking of the plaintiff about the hip, and throwing her down upon the platform, causing serious bruises and injuries. The bumper which struck the plaintiff is a square piece of timber, rounded over at the ends, to which the cowcatcher attaches; and it projects to the side far enough to cover the head of the cylinder, which it is intended to protect.

The learned trial judge had charged the

jury that, if they found that at the time the plaintiff was struck "she was upon the planking alongside of this railroad, then the verdict should be for the defendant, because it is evident, and must have been evident to every adult person, that that planking was not intended for persons to walk upon," etc. He had further charged that "if she were not upon the planking, but were upon the gravel walk or platform, as it is called, then the question for you to decide would be whether or not she was guilty of negligence in going so near as that to the rail, under the circumstances of the case." It should be observed that there was no evidence in the case which characterized the platform as only extending to the planking next to the rail. Nor was there any evidence that the platform was not properly constructed, or that the planking was intended for a different use than the rest of the platform. The trial court further charged that, if the jury found upon both of these questions in favor of the plaintiff, then "was it negligence in the company itself to have that gravel platform approach so near to the rail that passengers would be likely to be endangered even if they exercised reasonable care in the use of the platform, and did this accident spring out of that kind of negligence on the part of the company

* *

*?" "Does the evidence satisfy you that the company failed to take proper careand that means a high degree of care-for the safety of persons who came there as passengers, when they constructed that platform so close to the rails that there would be danger that persons in the prudent use of the platform would be struck by any part of the engine?" The jury was instructed that if they answered this question, as well as the previous questions, in favor of the plaintiff, then the verdict ought to be for the plaintiffs. Exception to these instructions were duly sealed, and error has been assigned thereon.

Even conceding for the present that the planking along the east rail was not a part of the platform, and that the graveled or stone surface along the planking is to be regarded as the platform proper, we are unable to concur in the view that any actionable negligence is shown by reason of its proximity to the tracks. Admittedly, it would then be a distance of 18 inches from the nearest rail. The evidence was that the engine in question was similar to the other engines used on the road, and that the projection of the bumper was the same in all of them. The engineer testified that the bumper extends a trifle beyond the planks (he could not say how much); that the plaintiff must have been about on the edge of the plank farthest from the rail when she was struck; that the bumper, as the witness stated it, "just glanced her," knocking her off sideways. In order to sustain the theory of the charge, it must be assumed, we think, that there is an implied invitation by the

company to its passengers to stand upon any part of its platform-even at its very edgewhen its trains are passing, and with it an obligation to exercise reasonable care for their safety when they may thus expose themselves to danger. In order to sustain a claim of liability against the owner or occupier for the injury sustained in the use of his premises where there is no express invitation, it must appear that there was an implied invitation; that is, that the person injured "entered the premises because he was led by the acts or conduct of the owner or occupier to believe that the premises were intended to be used in the manner in which he used them, and that such use was not only acquiesced in, but was in accordance with the intention or design for which the way or place was adapted, and prepared or allowed to be used." Sweeney v. Old Colony R. Co., 10 Allen, 364, 87 Am. Dec. 644; Phillip v. Library Co., 55 N. J. Law, 307, 27 Atl. 478; Turess v. N. Y., Susq. & West. R. Co., 61 N. J. Law, 314, 40 Atl. 614. Applying this test to the circumstances here involved, we must find that the plaintiff was using the extreme edge of the platform, near the rail, for a purpose entirely foreign to the intention and purpose of the company as to its use, and that there was no evidence to show that such a use was ever permitted or acquiesced in by the company. It is undoubtedly a settled rule that a railroad company is under a duty to exercise ordinary and reasonable care to so construct and maintain station buildings, platforms, and approaches that they shall be safe for use by passengers. Elliott on Railroads, 1590. But this use is to be exercised in conformity to the manifest purpose for which the structure in question is adapted. And so a railroad company is only required to build platforms of sufficient dimensions to accommodate passengers getting on and off at their stations. Harkey v. R. & P. Ry. Co., Fed. Cas. No. 6065; Taylor v. Penn. R. R. (C. C.) 50 Fed. 755; Moreland v. Boston, etc., R. R., 141 Mass. 31, 6 N. E. 225; Kelly v. Manhattan Ry., 112 N. Y. 440, 20 N. E. 383, 3 L. R. A. 74; Lafflin v. Buffalo R. Co., 106 N. Y. 136, 12 N. E. 599, 60 Am. Rep. 433. It is manifest that this duty requires the railroad company to construct its platform sufficiently near to the rails that it will afford to passengers, including the aged and infirm, a safe exit to and from the trains. And it is a matter of common knowledge that, in performing this duty, the platforms along the best regulated railroads are built so near the rails that the projections from the engines and the cars will overlap, to some extent, the edge of the platform. While the extreme edge of the platform is perfectly safe for passengers when occupying it for the purpose to which it is manifestly adapted, it is a matter of common knowledge that it is a place of danger when occupied while trains are passing or are likely to pass. It is the plain duty of the passenger when not

getting on or off a train, but while he may be waiting upon the platform, or engaged in walking upon it, to keep such a distance from the edge of it next to the rail that he would be beyond the reach of the projections of ordinary trains. And the company is not liable for injury to a passenger who suffers himself to go beyond such a limit, and is injured by a passing train. It was held in C., B. & Q. R. R. v. Mahara, 47 Ill. App. 208, that, where a platform is wide enough to give room for safety, the fact that it is so built that the edge nearest the track cannot be safely occupied as a standing place while trains are passing is not negligence. In Matthews v. Pa. R. Co., 148 Pa. 491, 24 Atl. 67, it was held that where a passenger waiting for a train at a station, the platform of which is properly constructed, stands so near the track as to be struck and killed by the bumper of a passing locomotive, the railroad company is not liable. See, also, McGeehan v. Lehigh Valley R. Co., 149 Pa. 148, 24 Atl. 205; Pa. R. R. v. Bell, 122 Pa. 58, 15 Atl. 561. It has also been held that a person has a right to walk on an elevated plank walk constructed by a railway company alongside of its track at a station for the use of passengers and the public, and to suppose himself in safety while occupying such walk at a point beyond the projection of all ordinary trains, and, if he is injured by a brake which projected more than the ordinary distance, the company is liable, etc.; it being the duty to warn the passenger as against extraordinary projections. Sullivan v. Vicksburg, S. & P. R. Co., 39 La. Ann. 800, 2 South. 586, 4 Am. St. Rep. 239. Upon principle somewhat similar, it was held that where an accident occurred to a passenger by his falling into the opening between platform and car, which had a width of from 112 to 18 inches, the opening itself was not evidence of negligence. Fox v. Mayor, etc., of New York, 53 N. Y. St. Rep. 902, 70 Hun, 181, 24 N. Y. Supp. 43. Under similar circumstances, the plaintiff, without having hold of the railing, and without looking, stepped out, and fell between car and platform. There was no proof that the plat form was not constructed in the ordinary way, nor that the space was greater than the exigencies of business required. There was no evidence of any previous accident. Held no evidence of negligence by the company, and no basis for recovery. Lafflin v. Buffalo, etc., R. R., 106 N. Y. 136, 141, 12 N. E. 599, GO Am. Rep. 433.

There is another reason why we think the question of negligent construction should not have been left to the jury, and that is the entire absence of proof that the construction was faulty, as not being in conformity to the usual mode of construction adopted by wellregulated railroads or otherwise. Negligence must be proved. As was said by Bramwell, B., in Cornman v. The Eastern Counties R. Co., 4 Hurlst. & N. 781: "It is