Ackerley v. Pa. R. Co. Trauzettel

Decision Date13 May 1943
Docket NumberNos. 12, 13.,s. 12, 13.
Citation32 A.2d 449,130 N.J.L. 292
PartiesACKERLEY v. PENNSYLVANIA R. CO. TRAUZETTEL v. SAME.
CourtNew Jersey Supreme Court

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Appeal from Supreme Court.

Consolidated actions by Mary C. Ackerley, as administratrix ad prosequendum of the estate of Benjamin John Ackerley, deceased, and by Helen Trauzettel, as administratrix ad prosequendum of the estate of Henry Trauzettel, deceased, against the Pennsylvania Railroad Company for the death of plaintiffs' intestate in a grade crossing collision. From judgments for plaintiff after defendant's motions for nonsuit and for directed verdict were denied, defendant appeals.

Affirmed.

Albert L. Kushinsky, of Toms River (Robert A. Lederer, of Toms River, of counsel), for plaintiffs-respondents.

John A. Hartpence, of Jersey City, for defendant-appellant.

WELLS, Judge.

These two cases arose out of a collision between a train and an automobile at a public crossing in Ocean County. They were consolidated for trial at the Ocean Circuit and are combined in one record here.

Motions for nonsuits and for directed verdicts in favor of the defendant were denied by the trial judge and the questions involved were submitted to the jury for determination. The jury rendered verdicts in favor of the plaintiffs in both cases, and these appeals are from the judgments entered thereon.

At the conclusion of the plaintiffs' case there was testimony to the effect that at about 8 o'clock in the morning of February 5, 1942, a Ford truck was being driven in a general southerly direction along Lacey Road, a public highway, in the Township of Manchester, by the decedent, Ackerley, in which the decedent, Trauzettel, was riding as a passenger and the truck approached the track of the defendant-railroad company at a point where the track intersects Lacey Road or Crossing, a public highway near Whitings.

It was snowing very hard. While visibility was good in clear weather yet because of the wind and driving snow it was poor on the day in question, but by the use of a windshield wiper there was little difficulty in seeing in the direction in which one was travelling.

The general area was wooded with scrub oak and pine, except for a strip along the railway right-of-way 100 feet on either side of the track, which is called the fire line.

The train operated by defendant approached the Lacey crossing travelling west, and the trusk approached from the north, travelling south. There was a collision at the crossing in which both Ackerley and Trauzettel were killed. At the time of the accident, they were on their way to work, being employed by the county in road work. There was no evidence that they were engaged in a joint enterprise.

The plaintiffs produced in their behalf one Charles Anderson, a fish peddler, who said that on the morning of the accident he was driving alone in his Dodge truck and as he was just coming off of the Toms River Road on to the Lacey Road he heard three or four blasts of the train whistle, that the last blast was heard by him when he was travelling in a general northerly direction between 20 to 40 feet in Lacey Road at a point indicated by an ‘X’ on Exhibit P-1, which point was 2400 feet south of the railroad crossing. Anderson said that his hearing was good; that he continued to travel in a general northerly direction toward the crossing at the approximate speed of between 15 to 20 miles per hour; that the windows of his truck were down; and that he travelled a distance of some 1900 feet along Lacey road to a point marked ‘O’ on Exhibit P-1 (which took about a minute), without hearing any further blasts of the whistle of the locomotive; said point ‘O’ being between 300 to 400 feet south of the crossing. When he got to the point marked ‘O’, he heard three or four short, sharp blasts of the whistle and within two seconds thereafter he heard a crash and saw the train pass over the crossing on the westerly side of the intersection. He could not say that after he heard the first series of whistles he was listening for further signals. He did not hear the bell ringing at any time. For four years he had travelled north twice a week over this road about the same time in the mornings and was well acquainted with the surroundings. On the day in question, because of the weather and the fact that he was approaching the railroad crossing he was travelling slowly and carefully. After the accident Anderson drove across the track and stopped his truck and walked 70 or 80 feet west of the intersection and found the decedents lying under the demolished truck alongside the track, both dead. The train was about 400 feet down the track. There were fresh skid marks of the tires in the snow on Lacey road north of the track showing that the truck had skidded with brakes applied from 10 to 12 feet onto the track.

Engineer Longstreet was called as a witness for plaintiffs and testified that the train had made a dead stop at the Keswick Colony Station, about 3/4 of a mile east of Lacey crossing, and that as the train approached the intersection it was travelling about 35 miles an hour.

With the negligence phase of the case in this posture, defendant moved for a nonsuit on the ground that no negligence had been shown as alleged in the complaint.

The plaintiffs rested their right to recover damages against defendant upon the single ground of its failure to comply with the statute R.S. 48:12-57, N.J.S.A. 48:12-57, which provides that: ‘Every railroad company shall place on each engine a bell weighing not less than thirty pounds which shall be rung continuously in approaching a grade crossing of a highway, beginning at a distance of at least three hundred yards from the crossing and continuing until the engine has crossed such highway, or a steam whistle, which shall be sounded, except in cities, at least three hundred yards from the crossing and at intervals until the engine has crossed the highway. * * *'

There were no gates, bell or other warning devices at the intersection, except the standard crossing sign on each side of the tracks as required by R. S. 48:12-58, N.J.S.A. 48:12-58.

Upon the refusal of the trial court to grant the defendant's motion for nonsuits, the defendant produced as witnesses, among others, its engineer, fireman, conductor, baggage-master and the postmaster at Whitings (one-half mile away), all of whom testified that the whistle had been blown, and two of whom also testified that the bell had been rung, in the manner and at the time prescribed by the statute.

Defendant says that the testimony produced by the plaintiffs as to the failure of defendant to give the statutory signals, or one of them, was purely negative testimony and cannot prevail as against the positive, affirmative testimony produced by the defendant that the whistle had been blown and the bell rung as aforesaid. Defendant contends, therefore, that at the conclusion of the plaintiffs' testimony, there being no competent proof of the non-blowing of the whistle or non-ringing of the bell (which was the sole negligence upon which the actions were based), the trial court erred in refusing to nonsuit the plaintiffs; and that at the close of the case, the defendant having shown conclusively by positive affirmative testimony, both of railroad and outside witnesses, that the whistle had been blown and the bell rung as required by law, it was likewise error on the part of the trial court to refuse...

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