Egan v. Erie R. Co., No. A--79

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtPROCTOR
Citation148 A.2d 830,29 N.J. 243
PartiesCatherine EGAN, an infant, by her Guardian ad litem, George Egan, Sr., et al., Plaintiffs-Appellants, v. ERIE RAILROAD COMPANY, a corporation of the State of New York, et al., Defendant-Respondent.
Docket NumberNo. A--79
Decision Date02 March 1959

Page 243

29 N.J. 243
148 A.2d 830
Catherine EGAN, an infant, by her Guardian ad litem, George
Egan, Sr., et al., Plaintiffs-Appellants,
v.
ERIE RAILROAD COMPANY, a corporation of the State of New
York, et al., Defendant-Respondent.
No. A--79.
Supreme Court of New Jersey.
Argued Feb. 3, 1959.
Decided March 2, 1959.

Page 246

[148 A.2d 831] Herbert E. Greenstone, Newark, argued the cause for plaintiffs-appellants (Greenstone & Greenstone, Newark, attorneys).

H. Curtis Meanor, Jersey City, argued the cause for defendant-respondent (Emory, Langan, Lamb & Blake, Jersey City), attorneys; H. Curtis Meanor on the brief).

The opinion of the court was delivered by

PROCTOR, J.

The plaintiffs appealed to the Appellate Division of the Superior Court from a summary judgment which the Law Division had entered in favor of the defendant railroad company. We granted certification under R.R. 1:10--1(a).

Catherine Egan, seven years of age, sued the Erie Railroad Company to recover damages arising from an accident in which she was struck by a freight car of the defendant. Her parents sued for consequential damages. The pleadings and the pretrial order disclose that at about noontime on November 8, 1955 the infant plaintiff attempted to board a moving freight train operated by the defendant, Erie Railroad Company, and was severely injured when she slipped and fell under the wheels of one of the cars. She resided with her parents in a housing project owned by the Housing Authority of the City of Hoboken. The housing project is separated from the defendant's railroad tracks by a narrow strip of vacant and unimproved [148 A.2d 832] land, varying from 10 to 40 feet wide, owned by the City of Jersey City. The Housing Authority erected a wire fence six feet high between its property and the aforesaid strip of land. This fence extends 1600 feet, which is the complete length of the property of the project. Both the Housing Authority of the City of Hoboken (together with the City of Hoboken) and the City of Jersey City are defendants in the action but are not parties to this appeal.

Page 247

The infant plaintiff obtained access to the railroad tracks by climbing over the wire fence. The train involved in the accident consisted of 53 cars with the caboose immediately behind the engine pulling the train. All members of the crew of five were riding in the engine or the caboose and none of them observed the infant plaintiff prior to the accident. The employees of the defendant company had prior knowledge that children were accustomed to playing upon the tracks in the vicinity of the accident and had no occasions chased them.

The case was pretried on March 13, 1958. The pretrial order, after stating plaintiffs' contention that the defendant was negligent in failing to take the necessary safety measures to prevent children from coming on the tracks, contained the following allegations which had not been set forth in the amended complaint: 'The deft wantonly caused injury to the infant plf upon its said property when it had actual notice of the infant being present upon its property at the time of said occurrence'; 'The deft wantonly omitted to take necessary precaution to provide watchmen on its said property after having previous knowledge that children were accustomed to playing thereon.'

Thereafter, the defendant railroad company moved for summary judgment on the ground that N.J.S.A. 48:12--152 barred the plaintiffs' action. The trial court held that the statute was applicable and directed that final judgment be entered in favor of the defendant railroad company.

N.J.S.A. 48:12--152 provides:

'It shall not be lawful for any person other than those connected with or employed upon the railroad to walk along the tracks of any railroad except when the same shall be laid upon a public highway.

'Any person injured by an engine or car while walking, standing or playing on a railroad or by jumping on or off a car while in motion shall be deemed to have contributed to the injury sustained and shall not recover therefor any damages from the company owning or operating the railroad. This section shall not apply to the crossing of a railroad by a person at any lawful public or private crossing.'

This statute had its origin in 1869. L.1869, c. 285, p. 806. It was enacted in virtually the above language as part of

Page 248

the General Railroad Law in 1903, L.1903, c. 257, § 55, and re-enacted in its present form in the general revision of the New Jersey statutes in 1937.

Plaintiffs contend on this appeal that children under present New Jersey decisional law cannot be deemed contributorily negligent as a matter of law and that the statute 'should not apply in the case of an infant.'

The effect of the statute is to absolve a railroad company from a duty to a trespasser. Although a trespasser is deemed to have contributed to an injury sustained as a matter of law, the statute is not restricted to that proposition, as it goes on to say that a trespasser who sustains an injury in the manner specified 'shall not recover therefor any damages from the company owning or operating the railroad.' This statute has been construed by both our state and the federal courts in actions brought on behalf of infants to recover for injuries resulting from being struck by engines or railroad cars. In Barcolini v. Atlantic City & S.R. Co., 82 N.J.L. 107, 81 A. 494, 495 (Sup.Ct.1911), a child 21 months old strayed upon the tracks of the [148 A.2d 833] defendant railroad company and was struck by the defendant's train. Our former Supreme Court in denying recovery held that the above quoted statute is 'a bar to recovery by any person who walks, stands, or plays upon a railroad. It in terms precludes any recovery for damages due to injuries received under the conditions therein mentioned, and applies to all persons alike, without distinction as to their age or physical or mental condition.'

The rule of the above decision was applied in Erie R. Co. v. Hilt, 247 U.S. 97, 38 S.Ct. 435, 436, 62 L.Ed. 1003 (1918). There a boy less than seven years old had been playing marbles near the siding of the defendant's railroad in Garfield, New Jersey, when a marble rolled under a freight car of the defendant. The boy tried to reach the marble with his foot and while he was doing so the car was backed and he was injured. There was open ground next to the siding which had been used as a playground by children, some very young, who were accustomed to playing not only on

Page 249

the open ground, but on the siding itself and over and about the cars standing on the rails. The practice was frequent and well known to the defendant railroad. Children were sometimes driven or ordered away but with little effect, since there was no barrier to keep them off. A jury verdict for the infant plaintiff was affirmed by the Circuit Court of Appeals. In reversing that holding Justice Holmes, speaking for the United States Supreme Court, said:

'The ground of the decision (by the Circuit Court of Appeals) seemingly is that the statute (L.1903, c. 257, § 55; N.J.S.A. 48:12--151) does not appear beyond doubt to apply to very young infants, although the word 'playing' sufficiently indicates that it had minors in view, even if the...

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49 practice notes
  • Public Service Ent. Group v. Philadelphia Elec., Civ. A. No. 88-3214
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 24 Agosto 1989
    ...at 634. (Citations and quotations omitted.) 28 Judge Neagle cited a definition of willful or wanton misconduct from Egan v. Erie R.R. Co., 29 N.J. 243, 254-55; 148 A.2d 830, 836 (1959): "To establish a willful or wanton injury it is necessary to show that one with knowledge of existing cond......
  • Alfone v. Sarno
    • United States
    • United States State Supreme Court (New Jersey)
    • 20 Julio 1981
    ...interpretation is indicative Page 109 of legislative intent. Lemke v. Bailey, 41 N.J. 295, 301, 196 A.2d 523 (1963); Egan v. Erie R. Co., 29 N.J. 243, 250, 148 A.2d 830 (1959). Legislative silence, however, has been referred to as a "weak reed upon which to lean," 2A Sutherland, Statutory C......
  • White v. North Bergen Tp.
    • United States
    • United States State Supreme Court (New Jersey)
    • 14 Septiembre 1978
    ...in the construction given the statute. See, e. g., Lemke v. Bailey, 41 N.J. 295, 301, 196 A.2d 523 (1963); Egan v. Erie R. R. Co., 29 N.J. 243, 250, 148 A.2d 830 (1959); Caputo v. Best Foods, Inc., 17 N.J. 259, 267, 111 A.2d 261 (1955); Miller v. Board of Chosen Freeholders, 10 N.J. 398, 41......
  • State v. Szemple
    • United States
    • United States State Supreme Court (New Jersey)
    • 12 Mayo 1994
    ...14, 334 A.2d 321 (1975) (holding same); In re Petition of Keogh-Dwyer, 45 N.J. 117, 120, 211 A.2d 778 (1965) (same); Egan v. Erie R. Co., 29 N.J. 243, 250, 148 A.2d 830 Page 431 (1959) (same); Hooton v. Neeld, 12 N.J. 396, 403, 97 A.2d 153 (1953) (same); Cook v. Bennett Gravel Co., 90 N.J.L......
  • Request a trial to view additional results
49 cases
  • Public Service Ent. Group v. Philadelphia Elec., Civ. A. No. 88-3214
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 24 Agosto 1989
    ...at 634. (Citations and quotations omitted.) 28 Judge Neagle cited a definition of willful or wanton misconduct from Egan v. Erie R.R. Co., 29 N.J. 243, 254-55; 148 A.2d 830, 836 (1959): "To establish a willful or wanton injury it is necessary to show that one with knowledge of existing cond......
  • Alfone v. Sarno
    • United States
    • United States State Supreme Court (New Jersey)
    • 20 Julio 1981
    ...interpretation is indicative Page 109 of legislative intent. Lemke v. Bailey, 41 N.J. 295, 301, 196 A.2d 523 (1963); Egan v. Erie R. Co., 29 N.J. 243, 250, 148 A.2d 830 (1959). Legislative silence, however, has been referred to as a "weak reed upon which to lean," 2A Sutherland, Statutory C......
  • White v. North Bergen Tp.
    • United States
    • United States State Supreme Court (New Jersey)
    • 14 Septiembre 1978
    ...in the construction given the statute. See, e. g., Lemke v. Bailey, 41 N.J. 295, 301, 196 A.2d 523 (1963); Egan v. Erie R. R. Co., 29 N.J. 243, 250, 148 A.2d 830 (1959); Caputo v. Best Foods, Inc., 17 N.J. 259, 267, 111 A.2d 261 (1955); Miller v. Board of Chosen Freeholders, 10 N.J. 398, 41......
  • State v. Szemple
    • United States
    • United States State Supreme Court (New Jersey)
    • 12 Mayo 1994
    ...14, 334 A.2d 321 (1975) (holding same); In re Petition of Keogh-Dwyer, 45 N.J. 117, 120, 211 A.2d 778 (1965) (same); Egan v. Erie R. Co., 29 N.J. 243, 250, 148 A.2d 830 Page 431 (1959) (same); Hooton v. Neeld, 12 N.J. 396, 403, 97 A.2d 153 (1953) (same); Cook v. Bennett Gravel Co., 90 N.J.L......
  • Request a trial to view additional results

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