
    JOHN A. NAPPER v. WEST JERSEY AND SEASHORE RAILROAD COMPANY. JOHN W. SNYDER v. WEST JERSEY AND SEASHORE RAILROAD COMPANY.
    Argued October 6, 1926
    Decided March 24, 1926.
    Negligence—Grade Crossing Accident—Injury to Motor Car— Judge’s Charge Exacted More of Defendant Than was Legally Required—Venire Oe Novo Awarded.
    On defendant’s rule for new trial.
    Before Gtjmmeee, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Bourgeois & Coulomb.
    
    
      Contra, Wescott-S Weaver and Joseph Beck Tyler.
    
   Pee Cueiam.

The plaintiffs in both of these actions, which were tried together, have verdict for damages for personal injuries received in a collision between a motor car in which they were riding and a train of the defendant company at a grade crossing of the Glassboro pike, and the defendant has a rule to show cause why the verdicts should not be set aside and a new trial had.

The learned trial judge in his charge read to the jury the portion of the statute requiring the giving of the statutory signals of bell or whistle and also the statute relative to the duty of railroad companies at crossings where safety gates or other warning appliances have been installed. He then proceeded to narrate to the jury the contentions of the respective parties as to the performance of the duties imposed upon the defendant and also to instruct them as to the duties of the respective plaintiffs, and then concludes or sums up the duties of the defendant in the following language:

“If you should find that the railroad company exercised all of the care, or due and reasonable care in accordance with the statutory obligations at this crossing, by providing a watchman in lieu of the gates while they were out of order, by having a lighted head light upon their front car, this being an electric train, by blowing their whistle and ringing their bell, then your verdict would be for the defendant for no cause of action.”

This exacted more of the defendant than was legally required, inasmuch as the duty imposed by the statute to give warning is either by ringing the bell or blowing the whistle, not both.

The rule to show cause must, therefore, be made absolute, and a venire de novo awarded.  