
    WILLIAM A. MOLYNEAUX, ADMINISTRATOR, &c., PLAINTIFF, v. NEW YORK, SUSQUEHANNA, &c., RAILROAD COMPANY, DEFENDANT.
    Decided November 7, 1923.
    Negligence — Motorcycle Collision at Grade Crossing — Question of Degree of Danger of Crossing — Contributory Negligence.
    On rule to show cause.
    
      Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff, Lewis Van, Blarcom and Henry T. Kays.
    
    For the defendant, Collins & Corbin and Hobart, Markley & Broadhurst.
    
   Per Curiam.

This suit was brought to recover damages under the Death act. The plaintiff’s intestate, -a young man about sixteen-years old, while riding a motorcycle, on May 27th, 1920, was killed by a locomotive at the grade crossing where the defendant’s tracks cross the highway which leads from Stockholm to Beaver Lake, in Hardyston township, Sussex county. The crossing is known as Lewis Crossing.

The trial resulted in a verdict for the plaintiff. The defendant obtained a rule to show cause why a new trial should not be granted. The rule must be made absolute and a new trial granted for two reasons: First, error in the court’s charge to the jury, in which he erred in leaving to the jury the question whether the crossing was one of extraordinary danger within the rule stated in such cases as Pennsylvania Railroad Co. v. Matthews, 36 N. J. L. 534; Danskin v. Pennsylvania Railroad Co., 76 Id. 660; Kyle v. Lehigh Valley Railroad Co., 81 Id. 186, 192; Ross v. Director General, 94 Id. 295. The rule is, that only when the company has created extra danger it is bound to use extra precautions other than those provided for by the statute. Second, according to the clear weight of the evidence the accident was due to the contributory negligence on the part of the plaintiff’s intestate.

The defendant’s rule to show cause must be made absolute.  