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The cause has been argued as presented by bills of excertions and assignments of error, and also by a return of the entire record of the proceedings had upon trial and causes specified pursuant to sections 136 and 137 of the Criminal Procedure act. Pamph. L. 1898, p. 915.

The first contention requiring consideration is that the learned trial judge erroneously instructed the jury as follows:

"It is not essential to overcome the presumption of innocence that there must be direct evidence indicating the guilt of the defendant. If the circumstances incident to the situation admit of drawing an inference excluding any notion but that of guilt, it would be sufficient to maintain the contention of the state that the presumption of innocence has been overcome.”

That instruction was erroneous. According to it, “if the circumstances incident to the situation” admit of drawing two inferences, one "excluding any notion but that of guilt," and the other, leaving the question of guilt in doubt, the fact that the circumstances admit of drawing an inference excluding any notion but that of guilt is sufficient to overcome the presumption of innocence. Such is not the true rule. The presumption of the defendant's innocence continues until overcome by proof establishing his guilt beyond a reasonable doubt. The instruction being erroneous and prejudicial to the defendant in maintaining his defence upon the merits, the conviction must be set aside.

As a new trial must follow the reversal of this conviction, we have examined the other alleged errors, in order that if any of them were of substance, they might be avoided at the retrial of the case. Our examination, however, has failed to disclose any error except that pointed out.

The judgment under review will be reversed, and the case remitted to the Court of Quarter Sessions for a trial de novo.

52 T'room.

Weller v. Lehigh, &c., Ry. Co.

LUCY J. WELLER V. THE LEHIGH AND HUDSON RIVER

RAILWAY COMPANY.

Subinitted December 1, 1910-Decided March 21, 1911.

1. In an action brought against a railroad company to recover for

injuries sustained by reason of a defect in a highway grade crossing over its tracks, an express allegation in the declaration that the accident occurred by reason of the defendant's failure to perform the duty imposed by section 26 of the General Railroad law (Pamph. L. 1903, p. 639), is unnecessary and will not sustain or aid the pleading. The declaration is sufficient in this respect if it sets out facts and circunstances from which such

duty arises, and a failure to perform it. 2. A breach of the duty imposed upon a railroad company by section

26 of the General Railroad law (Pamph. L. 1903, p. 659) “to construct and keep in repair good and sufficient bridges and passages over, under and across the railroad or right of way where any public or other road, street or avenue now or hereafter laid shall cross the same, so that public travel on the said road shall not be impeded thereby," renders the company liable to one of the public injured thereby while lawfully using the

highway. 3. An averment in a declaration that the defective condition of a

highway grade crossing of the defendant's railroad tracks had existed for three years prior to the accident, raises a presumption

of notice to the railroad company of the defect. 4. In an action against a railroad company to recover for injuries

sustained by reason of the breach of the duty imposed by section 26 of the General Railroad law (Pamph. L. 1903, p. 659), it is not essential to aver in the declaration that the defendant had notice of the defect in the crossing.

On demurrer to declaration.

Before GUMMERE, CHIEF JUSTICE, und Justices TRENCHARD and MINTURN.

For the plaintiff, Weller & Lichtenstein.

For the defendant, George M. Shipman.

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The opinion of the court was delivered by

TRENCHARI), J. This suit is brought to recover damages from the defendant company for injuries sustained by the plaintiff to her person and property by reason of the negligence of the defendant in failing to keep a certain highway grade crossing over its tracks in proper repair.

The declaration avers that the tracks of the defendant company cross a certain public highway in the county of Warren; that it then and there became the duty of the defendant to use due care to keep sound, safe and indefective planks or other safeguards between and by the side of the rails composing the track, so that the dirt between and by the side of the track would wear evenly and remain level and even so that all persons might go, return, pass and repass over and along said public highway and cross the track, free from hurts, &c.; that the defendant, disregarding its duty, left this railroad track and crossing in an unsound, unsafe and defective condition, without any planking or other safeguards between and at the side of the rails of the track, and with a deep hole or depression between the rails of the railroad track, and maintained its tracks and appliances in such an unsafe. defective and dangerous condition for a long space of time, to wit, three years before the happening of the grievances and injuries thereinafter mentioned. It then sets out the happening of the accident and alleges that it was due to the wheels of the wagon in which the plaintiff was driving being plunged or falling into a deep hole or depression between the rails of the track.

The defendant demurs, and the first ground of demurrer argued is that the declaration does not state a sufficient cause of action, because it fails to allege sufficient facts and circumstances to show that the action is brought under the “Act concerning railroads." Pamph. L. 1903, p. 615. There is no merit in this contention. The declaration alleges the dangerous condition of the crossing, and an accident to the plaintiff happening by reason thereof. It is not necessary that the declaration shall expressly allege that the accident occurred by reason of the failure of the defendant to perform the duty which it owed to the plaintiff under section 26 of the "Act con

12 T room.

Weller v. Lehigh, &c., Ry. ('o.

cerning railroads." Pamph. L. 1903, p. 659. Such an allegation will not sustain or aid a pleading. Cetofonte v. Camden Coke Co., 49 l'room 662. It is sufficient in this respect if it sets out facts and circumstances from which such duty arises, and a failure to perform it, and this appears in the present declaration. The duty imposed upon the defendant by section 26 of the General Railroad law was "to construct and keep in repair good and sufficient bridges and passages over, under and across the railroad or right of way where any public or other road, street or avenue now or hereafter laid shall cross the same, so that public travel on the said road shall not be impeded thereby.” For the breach of such duty the defendant is liable to one of the public injured thereby while lawfully using the highway. Sonn v. Erie Railroad Co., 37 Id. 128; affirmed, 38 1d. 350; Pirer v. Pennsylrania Railroail Co., 17 Id. 713.

It is further contended that the declaration is insufficient because it does not contain an allegation that the railroad company had notice of the fact that the crossing was defective or out of repair. We think the declaration sufficient in this respect for two reasonsfirst, because it avers that the conditioy existed for three years prior to the accident. That averment raises a presumption of notice to the defendant: serondly, such averment is not essential. As was said in Sonn v. Erie Railroad Co., 37 V room 428, 431, "as against a railroad company charged by law with the duty to the public imposed on the defendant it was sufficient, prima facie, to prove the defect. Exculpation was for the defendant.” Of course, it necessary to aver in the declaration anvihing which the plaintiff is not required to prove in order to make out a case. The plaintiff is entitled to judgment on the demurrer.

7

VOL. LII.

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Dubelbeiss v. West Iloboken,

81 V.J.L.

EUGENE DUBELBEISS, PROSECUTOR, V. TOWN OF WEST

HOBOKEN, DEFENDANT.

Submitted December 1, 1910-Decided March 15, 1911.

Section 5 of the Certiorari act of 1903 (Pamph. L., p. 343), providing

that actions of certiorari may be heard on notice before a single justice of this court at chambers, and that his determination shall be entered as the judgment of this court, is a valid exercise of legislative power and a judgment so entered is reviewable only by writ of error.

On motion to strike from the files a rule for judgment in cerliorari made by a single justice at chambers after hearing before him, pursuant to section 5 of the Certiorari act, or if such motion be denied, then to review such rule for judgment and set aside the same on the merits.

Before Justices REED, PARKER and BERGEN.

For the motion, Verritt J. Lane.

Contra, Edwards & Smith

The opinion of the court was delivered by

PARKER, J. The principal point of attack in this proceeding is section 5 of the Certiorari act of 1903 (Pamph. L., p. 313), which is challenged as unconstitutional on the ground that it delegates to a single justice who may be selected by a party, the prerogative jurisdiction in certiorari that may be exercised only by the court itself. Just what constitutional provision is infringed by this enactment is not indicated.

Section 5, first enacted in 1903, after prescribing the time within which reasons must be filed, provides that "after reasons filed either party may bring the action on for argument on five days' notire before any justice of the Supreme Court at chambers, and his order and determination therein shall be entered as the judgment of said court, and error may be as

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