Mack Trucks, Inc. v. Reading Co., Inc.

• Decision Date: 08 March 1977
• Citation: 148 N.J.Super. 387,372 A.2d 1108
• Parties: MACK TRUCKS, INC., Plaintiff-Appellant and Cross-Respondent, v. READING COMPANY, INC., a corporation, et al., Defendants-Respondents, and The Heil Co., a corporation, Defendant-Respondent and Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 387

148 N.J.Super. 387

372 A.2d 1108

MACK TRUCKS, INC., Plaintiff-Appellant and Cross-Respondent, v. READING COMPANY, INC., a corporation, et al., Defendants-Respondents, and The Heil Co., a corporation, Defendant-Respondent and Cross-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 21, 1976.

Decided March 8, 1977.

John L. McGoldrick, Newark, for appellant and cross-respondent Mack Trucks, Inc. (McCarter & English, Newark, attorneys; Richard D. Quay, Newark, on the brief).

Raymond W. Troy, Newark, for respondents Reading Co. Inc., et al. (Lum, Biunno & Tompkins, Newark, attorneys; Wayne J. Positan, Newark, on the brief).

Marc I. Bressman, Newark, for respondent and cross-appellant (Budd, Larner, Kent, Gross, Picillo & Rosenbaum, Newark, attorneys).

Before Judges MATTHEWS, SEIDMAN and HORN.

The opinion of the court was delivered by

SEIDMAN, J.A.D.

On August 13, 1971, at about 12:05 a.m., a Reading Company freight train consisting of 129 loaded coal cars, two empties, and three Diesel engines was proceeding through Woodbridge, in Middlesex County, on its way to Carteret. As it approached a spur leading into the adjoining Heil Co. plant the engineer observed that the switch was aligned for the siding, instead of the main track. Despite his immediate application of emergency brakes, the train could not be stopped in time. It went onto the spur, causing considerable property damage on the Heil premises before coming to a halt after being derailed.

Plaintiff Mack Trucks, Inc. filed a negligence action against Reading and Heil to recover $132,502.20 for damage to truck bodies and chassis which it had delivered to Heil for certain work to be done on them. Heil cross-claimed against Reading for the damage to its property in the amount of $35,129.14.

As a trial limited to the issue of liability, damages having been stipulated, Mack's claim against Heil was dismissed by the court. The jury resolved the issue of Reading's liability in favor of Mack and Heil. Thereafter, Reading moved for judgment N.o.v. and, alternatively, for a new trial. After hearing argument thereon, the trial judge granted the motion for judgment N.o.v., with the proviso that if the court was adjudged on appeal to be in error in this regard, then a new trial would be granted. Mack and Heil appealed from the resultant judgment, which recited only that '(o)n motion by the attorney for the defendant, Reading Co., the Court granted an Involuntary Judgment Dismissal (sic) as to the complaint of Mack Trucks, Inc. and the counterclaim of the Heil Co.'

For reasons which follow, we reverse and reinstate the jury verdict.

We address ourselves first to the granting of the motion for judgment N.o.v. In reviewing the action taken by the trial judge we are required to consider whether he correctly applied the standard set forth in Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969). On such motion (R. 4:40--2), the test is whether

'The evidence, together with the legitimate inferences therefrom, could sustain a judgment in * * * favor' of the party opposing the motion, I.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. * * * The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. (at 5, 258 A.2d at 708).

It is not in dispute that the mishap was caused by an open switch which diverted the Reading train from the main track onto the spur leading into the Heil property. There was also uncontroverted proof at the trial that when a train passed in the opposite direction about three or four hours earlier, the switch was apparently aligned correctly; otherwise, it would have sustained damage. The clear inference was that sometime during those hours the switch was thrown by some unauthorized person or persons. There was no evidence that any freight cars were scheduled to be switched onto the Heil siding that night. Furthermore, the freight cars which were on the Heil property had been placed there by a Reading switch crew on the day prior to the accident. Two or three times a week a switch crew came into the area of the Heil plant to place cars on its siding and also on others.

From the proofs adduced at the trial a jury could also have found these additional facts: In the course of the investigation following the accident a padlock used to secure the switch stand when not in use was found lying alongside the open switch. A sandy substance on the padlock matched a rock, broken parts of which were picked up nearby. Three or four years earlier a similar type of derailment had occurred on the Reading track within three miles of the Heil plant, caused, according to the police investigation, by juveniles who had broken open the lock that kept the switch in place. The railroad also had reports of five incidents of damage to flasher lenses, equipment and a crossing gate, all occurring since the beginning of 1971 and from 1 to 2 1/2 miles east of the Heil siding.

Expert testimony was given by a locksmith called on behalf of Mack. He testified that when he examined the padlock at Woodbridge police headquarters in 1975 he 'sincerely doubt(ed)' that the locking bar could have been broken by a rock striking the lock from the outside, because of rust inside the hole of the lock where the break occurred. In his opinion the lock should not have rusted during the four-year period 'if it had been a usable lock prior to the time the police had it.' The lock, he said, was not functional at the time of the incident and, moreover, striking an unbroken padlock with a stone could not cause it to open. He expressed the 'personal opinion' that the padlock had been broken for some unknown period of time and 'it was put on the switch and just closed and it looked like it was a normal standard padlock * * *, so that if a railroad employee came to check the lock and looked at the outside, it appeared locked.'

The trial judge reserved decision on Reading's motion for judgment at the close of the evidence and submitted the case to the jury, which, as noted above, found in favor of Mack and Heil on the issue of liability. In granting Reading's subsequent motion for judgment notwithstanding the verdict, the trial judge held that even if Reading were negligent in not having a fully operable lock on the switch, 'such negligence was not a proximate cause of the damages suffered by Mack and Heil in that some unknown third person committed the criminal act of throwing the switch.' There was, he reasoned, an intervening cause for which Reading was not responsible and which it could not foresee. He added that while there was evidence of an 'attack upon a switch' several years before within three miles of this location, 'there was no repetition of such attack.' He said further that from the evidence 'the legitimate inference at most can amount to a possibility of criminal conduct in the area.' As for the padlock, he said:

* * * The argument is, why did the Reading use locks, if not to protect against criminals throwing switches? The answer is that there is a need to protect against inadvertence. There is a need to protect against what we do regard as negligence in the operation of switches. You're using trains over this area, you're shipping cars in and out, and that there is a need to have only authorized personnel operate the switches. * * *

The trial judge concluded that there was not 'sufficient evidence here that reasonable men could differ * * * as to the probability of criminal act in relation to the duties that Reading owed' to Mack and Heil.

We think that the trial judge went beyond his 'mechanical' function under Dolson v. Anastasia, supra, of merely determining the existence of evidence which, viewed most favorably to the parties opposing the motion, could sustain a judgment in their favor.

It should be observed at the outset that our concern here is not with any issue of whether a padlock should have been provided for the switch, or whether the locking device actually furnished, assuming its operability, was suitable for that purpose. A lock was supplied and there was no competent proof that it was not an appropriate one. However the trial judge seems to have drawn the inference that the padlock was intended only to protect against negligence or inadvertence in the operation of the switch. Undeniably, such inference was proper. But an equally reasonable one was that the purpose of having a lock on the switch stand was also to forfend tampering with the switch by intruders bent on mischief. Since this inference favored the cause of Mack and Heil, they were entitled to its benefit on the motion for judgment N.o.v. Dolson v. Anastasia, supra.

There was, moreover, evidence in this case from which the jury could have found, directly or by inference, that the lock had been broken prior to the accident; that railroad personnel had occasion to open and close the switch in question several times a week; that in doing so they would have used a key for the lock, and that in the exercise of reasonable care they would have discovered that the lock was broken and notified their superiors so that action could be taken to repair or replace the lock. We think it was clearly for the jury to determine, in the circumstances, whether if there was such failure to exercise reasonable care, the omission constituted negligence chargeable to the railroad.

The crucial issue at the trial, of course, was proximate cause. It cannot be seriously doubted that the derailment here was brought about by an act of vandalism amounting to a...