Kaufman v. Pa. R. Co.

• Decision Date: 06 June 1949
• Docket Number: No. A-284.,A-284.
• Citation: 66 A.2d 527
• Parties: KAUFMAN v. PENNSYLVANIA R. CO. et al.
• Court: New Jersey Supreme Court

66 A.2d 527

KAUFMAN

v.PENNSYLVANIA R. CO. et al.

No. A-284.

Supreme Court of New Jersey.

Argued April 11, 1949.

Decided June 6, 1949.

Appeal from former Supreme Court.

Death action by Eva Kaufman, as administratrix ad prosequendum of the goods, chattels, etc., of Alex Kaufman, deceased, against the Pennsylvania Railroad Company, a corporation of the Commonwealth of Pennsylvania, George E. Cox and Saul Weidenfeld. From the judgments, the plaintiff appeals.

Reversed and new trial granted.

Milton Miller, Lakewood, argued the cause for the appellant (Julius Cohn, Union City, on the brief).

John A. Hartpence, Jersey City, argued the cause for the respondents Pennsylvania R. Co. and George E. Cox (John A. Hartpence, Jersey City, and James R. Laird, Jr., Asbury Park, attorneys for the respondent Pennsylvania R. Co., and Hervey S. Moore, Jr., Trenton, attorney for the respondent George E. Cox).

J. Victor Carton, Asbury Park, of counsel, submitted brief for the respondent Saul Weidenfeld (Durand, Ivins & Carton, Asbury Park, attorneys).

The opinion of the Court was delivered by

BURLING, Justice.

The appellant, who was the plaintiff below, appeals from judgments entered upon verdicts for the defendants returned by a jury in the former Supreme Court. The action was brought by the appellant as administratrix ad prosequendum of the estate of Alex Kaufman, deceased, against Saul Weidenfeld, operator of the motor vehicle in which plaintiff's decedent was riding at the time of his death and against the Pennsylvania Railroad Company, the operator and George E. Cox, the engineer of a railroad engine with which Weidenfeld's vehicle collided.

A resume of the evidence is expedient.

The appellant's decedent was riding on the rear seat of a passenger sedan driven by the defendant Weindenfeld, whose wife was also riding on the rear seat. No one occupied the right front seat. The relative positions of the passengers on the rear seat do not expressly appear. Weidenfeld testified that he and his wife had inspected some real property which he contemplated purchasing and that he invited Kaufman to come along and give him the benefit of advice. On the day of the event, which was clear and sunny, at approximately 2:30 o'clock in the afternoon, Weidenfeld was driving the vehicle in a westerly direction along the Farmingdale-Adelphia Road in Monmouth County. The car approached a grade crossing of the defendant railroad company's right of way at a speed of approximately 25 to 30 miles per hour. At this crossing the tracks intersected the road at an angle which from the direction from which Weidenfeld's vehicle approached was an obtuse one, the tracks running from northwest to southeast. The crossing was guarded with two sets of flashing red warning lights, each set containing dual lights facing in each direction along the highway and in addition was surmounted by a crossing sign of the crossbuck type, R.S. 39:4-183.22, N.J.S.A.; the one to Weidenfeld's right as he approached being located at the side of the road 4.6 feet east of the tracks. In addition to the lights there was a warning sign located 453 feet east of the crossing on the northerly side of the road, of the type referred to in R.S. 39:4-183.21, N.J.S.A. The terrain was level and there was no cuts in the right of way to the northeast.

As Weidenfeld's vehicle approached the crossing the engine and tender of the defendant railroad company were moving toward it from the northwest, that is, from his right hand side. Both the engineer Cox and the fireman testified that the engine was travelling in reverse so that it was preceded by its tender and that they were approaching the crossing at a speed of 25 to 30 miles per hour and that in compliance with the mandate of R.S. 48:12-57, N.J.S.A., the whistle was blown and the bell rung continuously from a point 300 yards from the crossing until after the crossing was passed. Their testimony in this respect was corroborated by that of others present at or near the scene who it was alleged had opportunity to see and hear. Weidenfeld testified that the warning lights were not working and that he heard neither the whistle nor the bell on the locomotive. He testified that upon approaching the crossing there was no impairment of his vision by trees or shrubbery or otherwise between himself and the locomotive; that he saw the locomotive when he was 200 feet from the crossing and judged it to be about 300 feet therefrom but that he assumed that it was moving away from him; that he heard nothing from the passengers on the rear seat either in the form of statements, conversations or movements, as the automobile was proceeding toward the crossing.

Upon entering the crossing the car was struck in the center of its right side by the tender and carried sidewise astride the tracks for a distance of approximately 300 feet from the road to a point where the engine stopped. Weidenfeld was knocked unconscious and remained behind the steering wheel. His wife...