Blauvelt v. Erie R. R. Co.

81 N. J. L.

away from him. When he arose and looked he could not see further than the freight house about two hundred or three hundred feet up the track. Unless he raised from his seat and leaned forward, he could see but a little ways-"about ten or fifteen feet maybe." He did that but once, and did not look again, but "kept his eye that way." but could see only about ten or twelve feet. The plaintiff stated that he was "very familiar with the location of all trees, buildings and anything that might tend to obstruct the view of the track in approaching the crossing.”

It was admitted that a clear view of two thousand feet was obtainable at points in the highway, distant one hundred, seventy-five and fifty feet from the crossing; at forty feet from the crossing the view is limited to two hundred feet, but again at twenty feet and thence to the tracks the view is unobstructed for two thousand feet.

With the familiarity possessed by the plaintiff of the surroundings, it is apparent that by looking only at a point where he had but a three hundred feet of view, and failing to look before reaching that point, or after passing it, where he might have obtained a two thousand feet of view, he did not exercise that care which devolves upon a prudent man in approaching a dangerous place. After he had made an observation and found his vision obstructed, it became his duty to be cautious. Central Railroad v. Smalley, 32 Vroom 277, 279. His driving upon the track at a slow walk without thereafter attempting further to look effectively with knowledge that a clear view might have been thereafter obtained, while yet in a place of safety, condemns him as contributing to the accident.

The judgment will be reversed that a venire de novo may be awarded

52 Vroom.

Kosher Dairy Co. v. N. Y., &c., R. R. Co.

KOSHER DAIRY COMPANY v. THE NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY, NEW JERSEY AND NEW YORK RAILROAD COMPANY AND ERIE RAILROAD COMPANY.

Argued November 2, 1910-Decided February 27, 1911.

The General Railroad law (Pamph. L. 1903, p. 663, § 35) prescribes the duty of giving signals by bell or whistle in the alternative and does not demand the doing of both.

On appeal from District Court of Hoboken.

Before Justices GARRISON, SWAYZE and VOORHEES.

For the appellants, Collins & Corbin.

For the appellee, William B. Stiles.

The opinion of the court was delivered by

VOORHEES, J. This appeal from the District Court of Hoboken brings under review a judgment entered for the plaintiff on the verdict of a jury for $225.

The suit was instituted to recover damages for the killing of three cows of a herd of nine while being driven across a grade crossing of the defendant railroad company.

Irrespective, however, of the proof of primary negligence of the defendant, or of contributory negligence of the plaintiff, the judgment must be reversed, for the refusal to charge the defendant's requests.

The following requests to charge were refused, such refusal having been specified as grounds for reversal.

"If the bell on the engine was ringing at a distance of more than nine hundred feet from the crossing, and continued until the crossing was passed, there can be no recovery by the plaintiff."

VOL. LII.

10

"If the whistle on the locomotive which struck the cows was sounded at least three hundred yards from the crossing, and at intervals until the engine crossed the highway, there can be no recovery by the plaintiff."

Each request accords with the requirements of the General Railroad law. Pamph. L. 1903, p. 663, § 35.

The court charged in effect, and must have been so understood by the jury, that the duty prescribed consisted of the blowing of the whistle and also the ringing of the bell; that if the defendant did both, this is all the law requires, and the verdict should be for the defendant.

The statute prescribes the duty in the alternative, and does. not demand the doing of both. New York, &c., Railroad Co. v. Leaman, 25 Vroom 202.

The requests were proper and embodied a correct statement of law applicable to the issue and should have been charged. For this reason the judgment must be reversed. Scott v. Mitchell, 12 Vroom 346; Van Vehten v. New York and New Jersey Telephone, &c., Co., 42 Id. 45.

Let the judgment be reversed and a new trial granted.

JACOB SCHNITZER, APPELLANT, v. BERNHARD RUSSELL APPELLEE.

Submitted December 1, 1910-Decided July 16, 1911.

1. In replevin, when, under the statute, a party asks that the value of the property be awarded to him in lieu of a return of the property itself, he should not be allowed to take a money judgment in excess of the true value of the goods indicated by their condition at the time he was deprived of their use. 2. For the unlawful detention of property having special usable qualities when a judgment in replevin will compel the successful party to accept the property in kind and not its value, the damages may not be measured by the interest upon its value, but where the party, of his own volition, elects under the statute to recover, in money, the value of the property, and thereby prevents the other party from making a return in kind, interest on such value is a proper measure of damages.

3. To entitle a defendant, under section 137 of the District Court act, as amended in 1899 (Pamph. L., p. 558), to a judgment for the value of the goods in lieu of a return, the defendant must be entitled to the chattels, as owner, as distinguished from ownership of an interest, or partial property therein.

On appeal from First District Court of Jersey City.

The judgment of the District Court, from which this appeal has been taken, was rendered for the defendant, in an action of replevin, by the court, sitting without a jury.

The state of the case, settled by the judge of that court. discloses the following facts: The defendant signed a writing dated January 1st, 1910, in which it was stated "that I have this day rented from the plaintiff the articles, all hereinafter mentioned, upon the following conditions: That if I pay to them (the plaintiff) * * :* a deposit of $25 on account *** the receipt whereof is hereby acknowledged and $2 installments each and every week * ** ** until the sum of $51 shall be fully paid, the said plaintiff will upon final payment sell to me the said property, agree to retain them as their goods as the property of the plaintiff who neither part with, nor do I acquire any title thereto, until the said sums are fully

paid.

ments

*

*

*

*

** *

*

and I

** ** * in trust for and

In case of any default in any of said paythis agreement shall, at plaintiff's option, be deemed annulled, and they (plaintiff) are hereby authorized to remove said property and collect all reasonable charges for the use and expense of removal thereof and injuries thereto." Six articles of household furniture appear

appended schedule, exhibiting the price of each article. and an aggregate charge of $76.10.

On May 16th, 1910, a second agreement was made between the parties exactly like the former, save as to date, amounts and articles of furniture. The aggregate amount of the latter agreement was $191.

Certain installments were paid on each of these agreements, and shortly after the delivery of the articles, under the first agreement, part of the same were returned to the

plaintiff. The trial court found as a fact that a charge had been made to and paid by the defendant, for the use of the articles returned, and that, before the commencement of the action, payments had been made sufficient to discharge the entire amount to be paid under the first contract. The articles so returned, although enumerated in the writ of replevin, had not been taken by it, and the constable was directed to amend his return in accordance with the fact. The aggregate of the prices affixed in the agreement to the returned articles was $29.10.

On August 11th, 1910, the defendant stated to the plaintiff that he desired to leave the country and desired to return the remainder of the articles and receive from the plaintiff the amounts paid under the contracts. The plaintiff offered $10 upon return of the goods; the defendant refused it, and stated that if nothing more would be allowed, he would send the goods to auction and have them sold, whereupon the plaintiff said he would inspect the goods the next day and see what allowance he would make for them. He did not do this. but on August 12th caused a written demand for the return of all the goods mentioned in the two agreements to be served upon the defendant, followed by the issuance of the writ, on the same day.

The trial court further found "that while some payments were in arrear, tested by the terms of the second contract, the plaintiff had received a payment of $2 on account of that contract on August 6th, and at intervals of a week, for three weeks prior thereto, so that any rigat which the plaintiff might have had to take advantage of prior default was waived by the reception of these payments, without protest or condition of any kind."

The court, under objection, admitted testimony that the taking of the goods by the writ left the defendant without any furniture, obliging him and his family to obtain meals at a restaurant, entailing an additional cost of living of $20, and also testimony showing cost of washing the wearing apparel of the defendant, which had been soiled by the officer in seizing the goods under the writ.