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49 Vroom.

Jones v. Pennsylvania R. R. Co.

without guarding the construction track by gates or giving adequate danger signals.

The statute prescribes an audible signal, to be sounded by every engine approaching a grade crossing of a highway beginning at a distance of three hundred yards from the crossing. Pamph. L. 1903, p. 663, § 35. An audible signal of such duration was rendered impracticable by the fact that the train in question started from a point much less than three hundred yards from the crossing. But this fact, while not dispensing with the giving of such audible signal as was practicable in the circumstances, tended to show that some precaution besides an audible signal was called for. For this reason, and because the evidence warranted a finding that the railroad company had itself created a situation of extraordinary danger at this crossing, the jury might very reasonably conclude that the exercise of reasonable care for the safety of travelers upon the street required the railroad company to employ a flagman or install gates for the construction track. Pennsylvania Railroad Co. v. Matthews, 7 Vroom 531; Delaware, Lackawanna and Western Railroad Co. v. Shelton, 26 Id. 342.

It appears that the plaintiff in error contented itself (so far as safeguarding the construction track was concerned) with contributing to the employment by the street railway company of a man (Carney by name) whose duty it was to signal to approaching street cars when danger was to be apprehended from an approaching railroad train.

It is unnecessary to say that the fact that the railroad company employed such a man or contributed to his employment is not sufficient to exonerate that company. The duty of taking care to warn travelers at a railroad crossing is one that cannot be evaded by delegating its performance to others. See 1 Thomp. Negl., $ 665.

There was evidence from which the jury might reasonably infer that this employe was negligent; that although he gave a warning to the approaching street car, it was so tardily given as to be of no service.

Therefore, upon the evidence, negligence was attributable to

Jones v. Pennsylvania R. R. Co.

78 N. J. L.

the railroad company in failing to exercise care to warn the motorman of the street car that the construction train was approaching, and this irrespective of whether the man Carney was properly to be deemed the agent of the railroad company.

The fact that the evidence tended clearly to show that the Public Service Corporation was likewise negligent, of course, does not debar the plaintiff her action.

It results that there was no error in refusing the motions for nonsuit and for direction of a verdict.

The sole remaining attack upon the judgment is rested upon the refusal of the motion made for arrest of judgment and award of a venire de novo. This motion was based upon the alleged ground that while the jury in fact rendered two verdicts, viz., one against each of the defendants and for $3,000 each, the deputy clerk of the court (who received the verdict in the absence of the judge) arbitrarily entered a joint verdict for $6,000 against both defendants.

Passing by the question (stirred, but not fully argued), whether the error alleged in this regard is reviewable by writ of error (see Davis v. Township of Delaware, 12 Vroom 55; 13 Id. 513, and cases cited), an examination of the bill of exceptions upon which the present attack is based convinces us that there was no judicial error in the refusal of the motion referred to.

The moving party (now plaintiff in error) undertook to show the facts upon which the motion was based, by evidence taken viva voce before the judge of the Circuit Court. From this evidence it appeared that at the conclusion of the trial the jury retired to consider of their verdict; that upon their return, the trial judge being absent, the deputy clerk proceeded to take the verdict; that he called the roll of jurymen and asked them if they had agreed upon the verdict, to which they responded in the affirmative, and said that the foreman would speak for them; the foreman, being asked, declared that the jury found the defendants guilty, and assessed the damages $3,000 against the Pennsylvania Railroad Company

49 Vroom,

Jones v. Pennsylvania R. R. Co.

and $3,000 against the Public Service Company; thereupon the clerk said to the jury: "Gentlemen, hearken to your verdict as the court has ordered it recorded; you find the defendants the Pennsylvania Railroad Company and the Public Service Corporation guilty, and assess the damages of the plaintiff at the sum of $6,000,” and to this the jury all agreed, and the verdict was so recorded, and judgment rendered against the two defendants jointly for $6,000 damages.

It is clear, we think, that the court below properly held that the verdict as thus recorded was the verdict intended to be rendered and actually rendered by the jury. The function of the jury in such a case is twofold-first, to pass upon the issue, guilty or not guilty, and secondly, if they find the defendant or defendants guilty, they are to assess the damages of the plaintiff. It is no part of the jury's duty to apportion the damages as between two defendants in an action of tort. In the case at hand, therefore, the deputy clerk was confronted with the question whether by the utterance of the foreman it was intended to say that the damages were $3,000, or that the damages were $6,000, of which each defendant should pay $3,000. The query that he put and the assent of the jury to it sufficiently showed that their assessment of damages was $6,000 and not $3,000, and warranted the entry of the verdict and judgment accordingly.

No error being found, the judgment should be affirmed.

For affirmanceTHE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, REED, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGII, VROOM, DILL, CONGDON, JJ. 15.

For reversal-None.

Opdycke v. Public Service Ry. Co.

78 N.J, L.

HENRY G. OPDYCKE, PLAINTIFF IN ERROR, V. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT IN ERROR.

Submitted December 6, 1909-Decided June 20, 1910.

1. Evidence reviewed, and held not to warrant a nonsuit for con

tributory negligence. 2. When a highway is laid out of a certain width the entire width

becomes subject to the public easement of passage; if a less width is graded and worked for travel, or if a bridge or culvert does not extend to the entire width, the public rights of passage are not thereby limited in favor of one who places an unauthorized or

improper structure within the highway limits. 3. One who places an unauthorized obstruction within the limits of

the highway as laid out is liable to an action at the suit of any person who is specially damnified thereby, and this although the

obstruction be outside the traveled way. 4. Consent granted to a traction company under Pamph. L. 1893, p.

302 (Gen. Stat., p. 3235), for the construction, maintenance and operation of a street railway along certain streets and highways, does not warrant the construction and maintenance, withi the limits of the highway, of a bridge for the accommodation of the tracks that in design and construction is dangerous to ordinary travel and calculated to entrap and kill horses and other animals

that may attempt to pass over it. 5. The fact that a horse is running beyond control when he is in

jured because of an unlawful and improper structure in the highway (the runaway not being attributable to plaintiff's negligence), does not debar the plaintiff from his action against the party maintaining the structure.

On error to the Supreme Court.

For the plaintiff in error, Edward P. Johnson.

For the defendant in error, Alvah A. Clark.

The opinion of the court was delivered by

PITNEY, CHANCELLOR. Plaintiff sued to recover damages for the death of his horse, occasioned, as alleged, by the wrongful conduct of the defendant company in maintaining within the limits of a certain public highway in the county of Som

49 Vroom.

Opdycke v. Public Service Ry. Co.

erset a certain bridge with its approaches that were improperly constructed and insufficiently guarded, and unfit and unsafe for the use of horses.

Plaintiff's horse was running away at night, without a driver, when it went upon the bridge in question, and because the bridge was not suited to the use of horses and vehicles, but was arranged for carrying a trolley railway only, and had open spaces between the cross-ties, the horse's feet got between the ties and his legs were broken, causing his death.

Plaintiff was nonsuited at the trial upon two grounds---first, that the bridge, while within the highway limits, was outside of the traveled way, and second, that the plaintiff was guilty of contributory negligence. The present writ of error is brought to review the judgment of nonsuit.

We will first dispose of the second ground upon which the decision below was rested. In the view of the trial judge the plaintiff was indisputably negligent in causing or permitting his horse, on the occasion in question, to be attached to a carriage with a broken shaft, the consequence being, as the learned judge thought, that the shaft fell from the tug and excited the horse, causing the runaway. An examination of the evidence convinces us that there is no other theory upon which a nonsuit for contributory negligence can with any degree of plausibility be defended, and we therefore content ourselves with discussing the view adopted by the trial judge.

It appears that plaintiff and his wife were driven in the early part of an evening in March from their residence in Finderne to the house of a friend in Bound Brook, where they dined and spent the evening. Plaintiff's coachman drove them, using a single horse and a carriage belonging to the plaintiff. According to the evidence, the horse was a spirited but not a vicious animal. About ten o'clock in the evening the coachman, in preparation for the return journey, backed the horse out from the shed under which he had stood tied, and in backing him accidentally broke the plaintiff's carriage, rendering it for the time unfit to be used. The plaintiff, being informed of the mishap, applied at a neighboring livery stable for a carriage to be hired for the occasion. The coachVol. XLIX.

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