George Siegler Co. v. Norton

Decision Date21 January 1952
Docket NumberNo. A--40,A--40
Citation8 N.J. 374,86 A.2d 8
PartiesGEORGE SIEGLER CO. v. NORTON.
CourtNew Jersey Supreme Court

Raymond W. Troy, Newark, argued the cause for the appellant (Charles S. Barrett, Jr., Newark, on the brief; Lum, Fairlie & Foster, Newark, attorneys).

Louis J. Greenberg, Jersey City, argued the cause for the respondent (Samuel M. Cole, Jersey City, attorney).

The opinion of the court was delivered by

ACKERSON, J.

The plaintiff, George Siegler Co., brought this action in the Superior Court, Law Division, against Henry K. Norton, trustee of the New York, Susquehanna & Western Railroad Co., for property damage to plaintiff's truck resulting from a collision with one of defendant's trains at an unguarded grade crossing. The accident occurred at 10:40 A.M. on March 19, 1948, at the intersection of Lundy's Lane and the defendant's tracks in the Town of Secaucus, in Hudson County, and resulted not only in the destruction of the truck, but in the death of its operator, an employee of the plaintiff, referred to in the record as 'Tony.'

Lundy's Lane is a narrow and little used road leading from Tonnelle Avenue down to and over the railroad right-of-way on which were maintained two sets of westbound tracks and two sets of eastbound tracks, eight rails in all. Between the eastbound and westbound tracks there was an intervening space of from 30 to 50 feet (allowing for the range expressed in the testimony) and this space was sufficient to permit a truck, such as the plaintiff's, to stop thereon in safety from passing trains. The crossing was not guarded by any mechanical signaling device, safety gates or flagman, since apparently the highway at that point was not of the class which called for protection (R.S. 48:12--54, N.J.S.A.) other than the ringing of a bell or the blowing of a whistle or horn from an approaching engine (L.1948, c. 252, p. 1115, § 1; N.J.S.A. 48.12--57) and the standard crossing signs (R.S. 48:12--58, N.J.S.A.) which had been erected on each side of the railroad right-of-way bearing the words 'Stop, Look and Listen.'

The train involved in the accident was eastbound and plaintiff's truck, coming from the north, would have to cross first the two sets of westbound tracks, then the above mentioned intervening space, before coming to the first eastbound track on which the accident occurred.

The plaintiff produced only one witness as to the occurrence of the accident. He was A. Louis Gandalfo who, at the time of the occurrence, was engaged in dumping fill near the crossing. He testified that he was standing on top of an embankment situated about ten feet back from the outside westbound track (on the westbound side of the crossing) when he first observed plaintiff's truck go down Lundy's Lane and come to a stop parallel to the point where he was standing. He recognized the driver, Tony, and after waving to him resumed his work. He then heard a crash and turning around saw the 'dump body fly around.' Running down to the tracks he found the truck 'all smashed up' in front of defendant's diesel engine about 300 feet up the eastbound track (the first reached after crossing the strip of ground between the two sets of tracks) and the body of the driver lying near it.

Gandalfo said he did not see Tony or the truck after it had stopped at the first set of tracks until after the collision and, therefore, was unable to supply any information concerning the conduct of the driver in the interim. The witness said he did not hear any whistle or bell sounded from the engine and did not hear the train's approach, but admitted he was not listening for it. He further testified that there were some swamp weeds about six feet high between the two sets of tracks but he did not say they would prevent the driver of the truck from seeing the approaching train. His only testimony concerning the view a person would have from the crossing along the right-of-way to the right of the truck (the direction from which the train came) was 'You can's see half a mile up the track.' No other testimony was produced by the plaintiff concerning the happening of the accident.

The first witness for the defendant was the fireman, Sytsma, who was in the cab on the left side of the locomotive at the time in question. He testified as to his familiarity with the Locus in quo and said that Lundy's Lane at that point is about 30 feet wide, has very little traffic and a person with normal eyesight, standing or sitting in a vehicle at the crossing, could observe an engine approaching, as this one was, from the vehicle's right, for at least half a mile away. However, the fireman, from his seat in the cab on the left side of the locomotive, could not see the crossing until he was about 300 feet therefrom because back of that point there is a very slight curve in the tracks bearing to the right as you go in an eastbound direction and the fireman's view ahead was therefore on a slight angle away from the crossing and obstructed by the hood of the engine until it came out of this curve 300 feet from the crossing. At this point the witness saw the plaintiff's truck for the first time coming over the first set of westbound tracks and proceeding at about 6 or 7 miles an hour. The train was then traveling at a speed of from 40 to 45 miles an hour, which was well within its maximum speed limit of 60 miles an hour. This witness said that when the dump truck reached the plot of ground separating the westbound and eastbound tracks it continued on at the same slow speed. Then he saw that the driver of the truck was not looking in the direction of the oncoming train at all and realizing that the driver was not going to stop in the middle space, as was the practice with trucks using that crossing, the fireman shouted to the engineer, who controlled the emergency brake from the opposite side of the cab, to stop the train. The brake was applied immediately but the train could not be stopped in time to avoid the collision.

With regard to signals, Sytsma testified that two long blasts, followed by two short blasts of the whistle, were sounded by the engineer at a signal post 1200 feet from the crossing and repeated or prolonged until the crossing was reached, and that the bell on the engine was operating, ringing continously from a transfer point some distance away. At the time of the accident the sky was cloudy but there was no mist or fog and the visibility was good. The testimony of the engineer was substantially the same as that of the fireman, except, of course, he did not see the vehicle approaching from his left because of the obstruction of the engine and had to rely on the fireman for such an observation. Two other witnesses who were on the train corroborated the fireman and engineer as to the giving of the whistle signals.

After the plaintiff had presented its evidence, defendant moved for a dismissal of the action, pursuant to Rule 3:41--2, upon the ground that no proof had been adduced of any negligence on the part of the railroad which proximately caused the accident and upon the further ground that contributory negligence on the part of plaintiff's employee, the driver of the truck, barred a recovery as a matter of law. The trial judge reserved decision on this motion. At the conclusion of all the testimony, defendant renewed its motion for dismissal and also moved for judgment, pursuant to Rule 3:50 (the equivalent of a motion for a directed verdict under the former practice), on the grounds previously stated. The court denied both motions, relying, so far as the issue of contributory negligence is concerned, largely upon R.S. 48:12--83, N.J.S.A., which requires that issue to be submitted to the jury in cases involving accidents occurring at unprotected railroad crossings. The jury, by a ten to two vote (N.J.S.A. 2:27--233.1), returned a verdict for the plaintiff in the amount of $1,400.

Thereafter defendant moved for relief from the judgment entered on that verdict and for the entry of final judgment in its favor pursuant to Rule 3:60--2, or, in the alternative, for a new trial under Rule 3:59. This motion was likewise denied. Defendant then appealed the judgment to the Appellate Division of the Superior Court and, while pending there, we took jurisdiction of the appeal on our own motion.

The only questions raised on this appeal relate to the defense of contributory negligence and not to the issue of primary negligence on the part of the defendant.

At the outset we are called upon to determine the question of whether or not R.S. 48:12--83, N.J.S.A., which, as already observed, required the submission of the issue of contributory negligence to the jury in cases involving accidents at unprotected railroad crossings, has been superseded by Rule 3:41--2 (dealing with a motion for dismissal at the termination of the plaintiff's evidence) and Rule 3:50 (dealing with a motion for judgment at the close of the trial and providing that 'Judgment on the motion shall be rendered without any action by the jury'). The statute (R.S. 48:12--83, N.J.S.A.) provides as follows:

'In any action against a steam railroad company to recover damages for injury or death occurring at any crossing at which the company has not installed any safety gates, bell or other warning or protective device of the kind usually employed to warn and protect the traveling public and to the negligence of the company, the plaintiff to the negligence of the company, the plaintiff shall not be nonsuited on the ground of contributory negligence on the part of the person injured or killed, but it shall be left to the jury to determine whether such person was exercising due and...

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