Baer v. Lehigh & Hudson River Ry. Co. 93 N. J. L. FRANK M. BAER, RESPONDENT, v. THE LEHIGH AND HUDSON RIVER RAILWAY COMPANY, APPELLANT. Argued June 20, 1919-Decided November 17, 1919. The only proper ground of appeal in the Court of Errors and Appeals from a judgment of the Supreme Court, when that tribunal sat as a court of review, is, that that court erred in giving judg ment for the successful, instead of the unsuccessful, party, or that it erred for one or more of the grounds of appeal filed in that court and brought up with the record. On appeal from the Supreme Court, whose opinion is reported in 93 N. J. L. 85. For the appellant, George M. Shipman and Gilbert Collins. For the respondent, Egbert Rosecrans. PER CURIAM. This is an appeal by the defendant from a judgment of the Supreme Court, affirming the judgment of the Warren Common Pleas, entered on a verdict of a jury. The respondent objects that there are no adequate grounds of appeal in this court, and submits that there should therefore be an affirmance or a dismissal of the appeal. The grounds of appeal in this court are stated thus: The Supreme Court affirmed the judgment, whereas, for one or more of the grounds filed in the Supreme Court, that court should have reversed the judgment. Counsel for respondent says in his brief that each ground of appeal should contain but one distinct proposition, citing Drummond v. Hughes, 91 N. J. L. 563. His proposition is sound, but neither it nor the case he cites apply to the case at bar. The only proper ground of appeal in this court from a judgment of the Supreme Court, when that tribunal has sat as a court of review, is, that the Supreme Court erred in giving judgment for the suc 93 N. J. L. Bright v. Lehigh & Hudson River Ry. Co cessful instead of the unsuccessful party, or that it so erred for one or more of the grounds of appeal filed in that court and brought up with the record. State v. Verona, ante p. 389. If the Supreme Court errs in giving judgment in a case in the class referred to, that is the one distinct error that it makes. The reasons why its judgment should be reversed must be found in the record brought up from that tribunal. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. For affirmance-THE CHANCELLOR, CHIEF JUSTICE, SWAYZE, TRENCHARD, BERGEN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, GARDNER, ACKERSON, JJ. 12. For reversal-None. ELIZA BRIGHT, ADMINISTRATRIX OF HARRY BRIGHT, DECEASED, RESPONDENT, v. THE LEHIGH AND HUDSON RIVER RAILWAY COMPANY, APPELLANT. Argued June 19, 1919-Decided November 17, 1919. On appeal from the Supreme Court, in which the following per curiam was filed: "This is the defendant's appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury in the Warren Circuit Court. "The plaintiff's intestate was a switchman employed by the defendant company in its yards on the outskirts of Phillipsburg. On the occasion in question, about midnight, according to the proofs, he went, on the order of the yardmaster, to throw a switch to allow an interstate train to go through the yard on what is known as the 'main' or 'lead' track. The evi Bright v. Lehigh & Hudson River Ry. Co. 93 N. J. L. dence permits of the inference that after he had placed the switch, and as the interstate train was going through, he stood some five feet away upon the adjoining track, watching for hot boxes, as it was his duty to do, when there was kicked down' upon this track on which he was standing an oil car which ran over him and killed him, without warning to him. "The question is whether, under the proofs, the defendant company may be said to have been negligent in failing to give some sort of warning of the 'kicking down' of this car. "We think that question must be answered in the affirmative. "There was evidence of a custom to give warning of which the defendant company had knowledge. "Mr. Carroll testified: "Q. When a flying drill was made in the yard, was it customary to warn in any way? "A. Certainly, to have a man down there to shout or whistle, or to have a man on the front of the car.' This witness also testified that it was the yardmaster's orders not to 'kick any cars on number one while ninety-eight was pulling through the lead.' "To the same effect is Mr. Purcell's and Mr. Blackman's testimony. "The question whether there was a custom recognized by the company, and which was broken, was properly submitted by the trial judge to the jury. "The defendant, however, complains that the rules of the company expressly negative the idea of a custom to warn. We do not so read the rules. "It is also claimed by the defendant that the decedent had notice that the car which hit him was coming down. Whether he had or had not seasonable notice was, we think, a jury question. "It seems clear a verdict could not have been properly directed. "We find no prejudicial error in the charge, nor in the refusal to charge, nor in the admission of evidence. "The judgment will be affirmed, with costs." For the respondent, George M. Shipman and Gilbert Collins. For the appellant, William C. Gebhardt. PER CURIAM. The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court. For affirmance-THE CHANCELLOR, PARKER, BERGEN, MINTURN, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, ACKERSON, JJ. 10. For reversal-None. ERNEST R. BROWN, APPELLANT, v. BOROUGH OF DUNELLEN ET AL., RESPONDENTS. Argued June 23, 1919-Decided November 17, 1919. On appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 292. For the appellant, Collins & Corbin. For the respondents, Rene P. F. von Minden. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court. Buckley v. Ellsworth Camp, &c. For affirmance-THE CHANCELLOR, CHIEF 93 N. J. L. JUSTICE, SWAYZE, TRENCHARD, KALISCH, BLACK, WHITE, HEPPENHEIMER, TAYLOR, GARDNER, ACKERSON, JJ. 11. For reversal-None. EVA BUCKLEY, APPELLANT, v. ELLSWORTH CAMP, No. 32, SONS OF VETERANS, DIVISION OF NEW JERSEY. UNITED STATES OF AMERICA, RESPONDENT. CHRISTINE CARROLL, APPELLANT, V. ELLSWORTH CAMP, No. 32, SONS OF VETERANS, DIVISION OF NEW JERSEY, UNITED STATES OF AMERICA, RESPONDENT. Submitted July 7, 1919-Decided November 17, 1919. On appeal from the Supreme Court, in which the following per curiam was filed: "This suit was a contest over a death benefit fund of $50 by the two plaintiffs, the widow and mother of Jeremiah Carroll, deceased. By consent of the parties the cases were tried together by the court without a jury, resulting in a judgment in favor of the plaintiff, Christine Carroll, widow, in one case, and against the plaintiff, Eva Buckley, the mother, in the other case. In the latter case there is an appeal. There are three grounds of appeal alleged. The first and third involve questions of fact only; the second is whether a member of the defendant organization, in the absence of a provision to that effect, either in the by-laws or constitution, has a right to change the beneficiary. Section six (6) of article 12 of the by-laws is as follows: 'On the death of any brother, his nearest relative or such person to whom he may direct shall |