Foley v. New York, Ontario & Western Railway Co. , 97 N.J.L. 278 ( 1922 )

The opinion of the court was delivered by

Katzenbach, J.

This is an appeal from a judgment rendered in the Hudson County Circuit Court in favor of the plaintiff below. The action was instituted under the Federal Employers’ Liability act to recover damages for the death of Edward Foley, a brakeman in the employ of the Xew York, Ontario and Western Railway Company, the defendant below. The place of the accident was in the Weehawkeu yards of the West Shore Railroad Company. The defendant operated under lease in these yards two tracks extending in a northerly and southerly direction from certain storage tracks to its coal docks. The westerly of the two tracks was at the base of a hill. It was used for transfering loaded coal cars from the storage tracks to the docks. On the afternoon of June 24th, 1920, a draft of nine loaded coal cars was being pushed by an engine over the westerly track towards the docks at a speed of approximately ten miles an hour. Foley was standing on the leading ear as a lookout. The foremost journal on the westerly side of the car on which Foley was standing struck a boulder eighteen or twenty inches in diameter, which had come from the adjacent hillside and lodged-just outside of the westerly rail of the track. The car was derailed and Foley was thrown to the ground and killed.

The course of the boulder which caused the accident was traceable by the marks on the ground. It had been lodged in the rear of a larger boulder. This location was evidenced by a depression in the ground which conformed to the shape of the stone. The depression was on level ground and was from two to six inches in depth. After the accident the depression was found to be tnoist and the surrounding land dry. One face of the stone was discolored by earth stains. Its location before the accident was about forty feet from the track and fifteen feet above the rail.

In an action under the Federal Employers’ Liability act recovery can be had from the carrier only for an injury or death resulting in whole or in part from the negligence of any of the officers, agents or employes of the carrier, or by reason of any defect or insufficiency due to the carrier’s negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment. Xegligonce is the gist of ihe action and negligence of the carrier mmt he proved to recover damages. The plaintiff or decedent inusx also have* been engaged at the time of the accident in interstate commerce. The negligence set forth in the complaint is ;})¡tt the defendant failed in the discharge of its duty to the plaintiff’s intestate to use ordinary care to keep its roadbed in a reasonably safe condition, in that it omitted to erect along the westerlj- side of its right of way a retaining wall to prevent boulders from rolling upon its roadbed and track or omitted to remove from the hillside the boulders so as to have prevented them from reaching the track and roadbed.

The burden of proving negligence rested upon the plaintiff. At the conclusion of the plaintiff’s case a motion to nonsuit was made for the defendant and overruled. At the termination of the evidence a motion to direct a verdict for the defendant was made and overruled. Both motions were based in part on lack of proof of negligence. To these rulings exceptions were taken, and these exceptions are now urged as grounds for the reversal of the judgment rendered.

The plaintiff sought to prove that it was the duty of the defendant to anticipate that stones would, roll down the hillside on the track and to guard against such an accident as did occur by proving that prior to the accident other stones had rolled down the hillside. If the plaintiff had offered testimony that prior to the accident, and at a place where the topography of the land was essentially similar to the point where the boulder causing the accident had rolled down the hillside other stones or boulders had descended upon the roadbed, a jury question would have been presented. Ferguson v. Central Railroad Co., 74 A. J. L. 691. The testimony which the plaintiff offered, however, was to the effect that at a point some eight hundred feet from where the accident occurred, and where the bank had been dug into and made almost perpendicular by the excavation, stones undermined by the excavation, had fallen in the vicinity of or upon a yardmaster’s shanty. These stones never reached the track or fell in a position to cause an accident. The place where these stones rolled down was too remote from the scene of the accident and the conditions at the two points too dissimilar to apprise the defendant of any likelihood of danger from rolling stones at the place where the accident occurred.

The plaintiff also sought to establish negligence by the testimony of Guy W. Cnlgin, a civil engineer, as to the probability of stones rolling from the hillside to and upon the track through vibrations produced by switching movements in the yard. This witness made an observation some seven months after the occurrence of the accident, occupying an hour and a quarter. He noticed a vibration from the passing of one train. In his opinion, the vibration he observed would eventually dislodge stones, but this would not apply to embedded stones or stones which would have to be lifted even to a slight extent in order to get them out of their position. He further stated that the larger stones were embedded in the soil. He did not state the length of time which would be required to dislodge stones by the vibration he noticed. He testified that he observed none dislodged during his investigation. This testimony does not establish negligence. The only stones which could cause an accident of the character of the one which Aid occur were the large stones, and these, according to the testimony of Mr. Cnlgin, were so embedded as not to be susceptible to the vibrations to which he testified.

The plaintiff’s case, as we view it, is lacking in any proof that from the conditions as they existed at the place of the accident an ordinarily prudent person could have anticipated the happening of this accident. The trial court should have granted the motion for a nonsuit on the failure of proof of negligence. The evidence offered by the defendant confirms and strengthens this opinion. It was proved that this track was laid in 1895. To the time of the accident it had been in continual use for twenty-five years. During this period no stones had ever been known to roll down from the hill in the vicinity of the place where the accident occurred or where the topography of the land was similar to the land at the place of the accident. There was no evidence -that by human agency stones had been rolled from the hillside to the track. The photographs offered in evidence show that the hill was not abrupt and did not overhang the track. There seems to be nothing at the location where the aceident occurred which would cause an ordinarity prudent person to take the precautions the plaintiff urges should hare been taken to protect the track from obstructions coming from the hillside. Liabilitj' does not iiow from every accident. Accidents may occur grievous in their consequences for which no one is legally or morally responsible.

In deciding, as we do, that there was no evidence of the negligence of the defendant which warranted the submission of the case to the jury, and that the trial court erred in denying both the defendant’s motions to nonsuit and to direct a verdict for the defendant, it becomes unnecessary to consider the other grounds of appeal urged by the appellant.

The judgment is reversed and a venire de novo awarded.