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148

NEW JERSEY SUPREME COURT.

Leithead v. West Jersey, &c., Railroad Co.

MARY A. LEITHEAD, ADMINISTRATRIX, &c., v. WEST JERSEY AND SEASHORE RAILROAD COMPANY.

78 N. J. L.

Argued November 9, 1908-Decided February 23, 1909.

Plaintiff's intestate, sitting in a carriage, drove in daylight upon a railroad crossing and was killed by a passing train. At a distance of twenty-four feet from the nearest rail of the southbound track and thirty-eight feet from the nearest rail of the northbound track on which the train was moving, and from that point forward, he would have had, if he had looked, an unobstructed view for more than a mile of the track in the direction from which the train was coming. There was nothing present to interfere with the free use of vision or hearing, nor to distract his attention. Held, that plaintiff's intestate was guilty of contributory negligence.

On rule to show cause.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

For the plaintiff, Higbee & Coulomb.

For the defendant, Bourgeois & Sooy.

The opinion of the court was delivered by

TRENCHARD, J. This action was brought to recover damages for the death of the plaintiff's intestate, who was killed by the train of the defendant company at a grade crossing at Germania in Atlantic county.

The trial resulted in a verdict in favor of the plaintiff. The defendant was allowed a rule to show cause why this verdict should not be set aside and a new trial granted.

It is conceded that there was evidence justifying a finding of negligence upon the part of the defendant company in failing to give the statutory signals. But it is insisted that the motion to nonsuit the plaintiff upon the ground of con

49 Vroom. Leithead v. West Jersey, &c., Railroad Co.

tributory negligence, made at the trial, should have been granted.

We think the plaintiff's intestate was guilty of negligence which proximately contributed to the collision.

The evidence exhibited the following facts: The plaintiff's intestate, James L. Goldthrope, was driving along Cologne avenue at five o'clock in the afternoon of June 24th, 1907, seated in a carriage. The carriage was an ordinary farmer's carriage, with curtains on the sides and rear. The side curtains were raised, enabling Mr. Goldthrope to see out both sides. The avenue is crossed by the double track railroad of the defendant company. The train which killed Goldthrope was going north on the northbound track; Goldthrope was traveling from west to east. Mr. Goldthrope drove his horse at a walk over the southbound track and near or upon the northbound track, then looked both ways, "turned deadly pale," and immediately turned his horse to the left; the horse itself was not moving any nearer the track after Goldthrope saw the train than it was at the time Mr. Goldthrope looked in both directions and turned pale. The horse was struck on the hip by the engine and Mr. Goldthrope was killed.

It further appeared that at a point in the highway twentyfour feet distant west from the nearest rail of the southbound track, and thirty-eight feet from the nearest rail of the northbound track on which the train was moving, and from that point forward, there was an unobstructed view for more than a mile down the straight track in the direction from which the train was coming. It further appeared that there was nothing present to interfere with the free use of vision and hearing, nor to distract his attention.

It thus clearly appeared that if the plaintiff's intestate had used his eyes, as he was legally bound to do, he would have seen the approaching train in time to have avoided the collision. His failure so to do was negligence which contributed to the collision, and the motion to nonsuit should have been granted. Pennsylvania Railroad Co. v. Righter, 13 Vroom 180.

The rule to show cause will be made absolute.

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49 Vroom.

Leo Co. v. Jersey City Bill Posting Co.

whom the defendant held this advertising privilege had expired, and after having failed to come to terms with the plaintiff for the retention of the fence privilege, the defendant, by its servants, went to the premises in question and removed the fence and carted it away.

The learned trial judge, sitting without a jury, rendered judgment for the plaintiff for nominal damages only, and the plaintiff appeals.

The trial judge was of the opinion that under the facts stated the title of the fence was in the defendant, but he rendered judgment for the plaintiff upon the theory that the defendant in recovering its property committed a technical trespass.

We think the judge was in error in his finding that the title of the fence was in the defendant.

As a general proposition a fence is a part of the freehold, and the ownership of it is determined accordingly. 12 Am. & Eng. Encycl. L. (2d ed.) 1059. This is so as between vendor and vendee. Ruckman v. Outwater, 4 Dutcher 581. It is, of course, true, as pointed out by Chief Justice Beasley in Ivins v. Ackerson, 9 Vroom 220, 222, that a fence is not "out and out" a part of the land, but may, as between the owner of the land and the owner of the fence before annexation, retain its character as personalty by an express agreement between them to that effect.

We are thus brought to a consideration of the main question in this case, whether a subsequent innocent purchaser of the land, without notice, is affected by such an agreement.

Most of the cases presenting the question of the right of a third party to chattels which have been annexed to the soil arise as between conditional vendors, or chattel mortgagees, and purchasers or mortgagees of the realty. Our own courts have recognized the title of the conditional vendor or chattel mortgagee as against a mortgage upon the realty executed before the personal property was affixed to the soil (Palmateer v. Robinson, 31 Vroom 433; General Electric Co. v. Transit Equipment Co., 12 Dick. Ch. Rep. 460; Campbell v. Roddy, 17 Stew. Eq. 244), but thus far, so far as we know.

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Leo Co. v. Jersey City Bill Posting Co.

78 N. J. L.

they have not been called upon to decide as to the rights acquired by a bona fide purchaser, without notice, after the fixture is upon the premises. Palmateer v. Robinson, 31 Vroom 433, 436.

In other jurisdictions the weight of authority is to the effect that a subsequent purchaser of the land, without notice, is not affected by an agreement between the owner of the land and the owner of an article at the time of annexation that the article shall retain its personal character and be subject to removal at the pleasure of the owner of the article. Hobson v. Gorringe (1897), 66 L. J. Ch. 114; 1 Ch. 182; McDonald v. Weeks, 8 Grant Ch. (N. C.) 297; Porter v. Pittsburg Bessemer Steel Co., 122 U. S. 267; Prince v. Case, 10 Conn. 375; Joliet First National Bank v. Adam, 138 Ill. 483; Binkley v. Forkner, 117 Ind. 183; Bringholff v. Munzenmaier, 20 Iowa 513; Rowand v. Anderson, 33 Kan. 264; Ridgeway Stove Co. v. Way, 141 Mass. 557; Stevens v. Rose, 69 Mich. 259; Climer v. Wallace, 28 Mo. 556; Arlington Mill, &c., Co. v. Yates, 57 Neb. 286; Haven v. Emery, 33 N. H. 69; Brennan v. Whitaker, 15 Ohio St. 446; Muir v. Jones, 23 Oreg. 332; Forrest v. Nelson, 108 Pa. St. 481; McCrillis v. Cole, 25 R. I. 156; Hutchins v. Masterson, 46 Tex. 551; Davenport v. Shants, 43 Vt. 546; Wade v. Donau Brewing Co., 10 Wash. 281; Frankland v. Moulton, 5 Wis. 1.

As a reason for this rule it has been said: "To hold otherwise would contravene the policy of the laws requiring conveyances of interests in real estate to be recorded, seriously endanger the rights of purchasers, afford opportunities for frauds, and introduce uncertainty and confusion into land titles." Hunt v. Bay State Iron Co., 97 Mass. 279. See, also, Haven v. Emery, 33 N. H. 66; Powers v. Dennison, 30 Vt. 752, 756.

We have not overlooked the fact that in Alabama, Maine and New York the rule appears to be otherwise, their cases seeming to hold that a subsequent purchaser cannot claim the chattels, though ignorant of the agreement by which they were to retain their personal character. But with regard to

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