Bray v. West Jersey & Seashore Railroad , 98 N.J.L. 148 ( 1922 )

The opinion of the court was delivered by

Swayze, J.

The plaintiff was injured while driving on a street in Camden where the Public Service Railway Company had made an excavation. He vras allowed to recover upon the theory that they had not taken sufficient care to guard the excavation. This was proper. An excavation of this character is necessarily more or less of an interference with public travel and a menace to the public unless properly guarded. What is proper care in this respect is a jury question. The case is like T. A. Gilespie Co. v. Cumming, 62 N. J. L. 370. The plaintiff mistook his road in the confusion caused by the numerous red lights, and it was for the jury to say whether he had exercised reasonable care in this respect. At the argument it was urged that there was no testimony connecting the West Jersey and Seashore Eailroad Company with the accident. This was a mistake. Mr. Clapp testified that the railroad system at that point was operated by the West Jersey and Seashore Eailroad Company, and the motion made for a direction of a verdict in favor of the West Jersey and Seashore Eailroad Company was made on the ground of contributory negligence only, and counsel making the motion conceded that there were employes of the West Jersey and Seashore Eailroad Company as well as of the Public Service Eailway Company and foreman of both companies directing the operation of the work.

It is probable that all the counsel knew that the tracks were the tracks of the West Jersey and Seashore Eailroad Company, and took it for granted that there was more proof of that fact than there was, but there was enough in the absence of contradiction.

The judgment must be affirmed, with costs.

For affirmance — The Chancellor, Swayze, Trenchard, Bergen, Minttjrn, Black, Katzenbach, White, Williams, Gardner, Ackerson, Van Busktrk, JJ. 12.

For reversal — None.