Mellon v. Pennsylvania-Reading Seashore Lines

• Decision Date: 25 June 1951
• Docket Number: No. A--137,PENNSYLVANIA-READING,A--137
• Citation: 7 N.J. 415,81 A.2d 747
• Parties: MELLON v.SEASHORE LINES.
• Court: New Jersey Supreme Court

Page 415

7 N.J. 415

81 A.2d 747

MELLON v. PENNSYLVANIA-READING SEASHORE LINES.

No. A--137.

Supreme Court of New Jersey.

Argued May 21, 1951.

Decided June 25, 1951.

Grace Heritage Smith, Camden, argued the cause for the appellant (Richards, Capehart, Smith & Wood, Camden, attorneys).

Carl Kisselman, Camden, argued the cause for the respondent (Anthony F. Marino, Camden, attorney).

The opinion of the court was delivered by

ACKERSON, J.

This is a tort action to recover for personal injuries and property damage arising out of the collision between plaintiff's automobile and an electric train of the Pennsylvania-Reading Seashore Lines at a grade crossing in the City of Camden.

The record before us discloses the following pertinent facts: the collision occurred on the evening of November 3, 1948 at a point where the defendant's tracks intersect Chelton Avenue, a public highway in Camden. The defendant's right of way over Chelton Avenue consists of three sets of tracks running north and south, which cross the highway at right angles. The crossing was protected by a watchman who was on duty from 6:00 A.M. to 6:00 P.M. as a notice posted on his watch box showed, and also by a crossing bell located at the southwest corner of the crossing and by the standard crossing signs. The plaintiff, Arthur Mellon, driving his automobile, approached the crossing about 6:10 P.M. (after the crossing watchman had left) driving easterly on Chelton Avenue on his way from work in the Camden Brewery, where he had been employed for seven years, and which was situated several hundred feet from the crossing. A fellow worker, Stanley Kaminski, driving an automobile about 100 feet ahead of the plaintiff, slowed down and passed over the tracks. It is conceded that it was a bad night. It was wet and dark, and a fine mist filled the air. Plaintiff testified that he slowed down and came to a full stop at the crossing for several seconds, his headlights were on, and, after looking to his right and left and seeing and hearing nothing, he proceeded to cross the tracks. In doing so his automobile was hit by the lead car of defendant's electric train which was traveling in a southerly direction--from the plaintiff's left--on the most westerly track of defendant's main line to Millville. The force of the impact carried his automobile a distance of 150 feet causing its destruction and multiple injuries to the plaintiff for which he seeks damages in this suit.

The negligence alleged, as stated in the pretrial order, is that plaintiff's automobile 'was struck without warning by the defendant's electric train * * *'. The railroad denied negligence and set forth the separate defenses of contributory negligence and assumption of risk. At the close of the evidence, defendant moved for judgment pursuant to Rule 3:50 (amended November 10, 1949). The trial court denied the motion and submitted the case to the jury resulting in a verdict of $5,000 in favor of the plaintiff upon which judgment was entered in the Superior Court, Law Division. Thereafter, defendant moved for a new trial on the grounds that the verdict was against the weight of the evidence and excessive. This motion was also denied. Defendant appealed from the judgment so entered to the Appellate Division of the Superior Court, and, prior to hearing there, the appeal was certified to us on our own motion.

At the outset it must be borne in mind that the propriety of the lower court's ruling on the first motion, i.e., for judgment in defendant's favor, is now challenged. Whether the verdict is excessive in amount or against the weight of the evidence are not matters presently before us for decision. Hence we are guided by the well settled principle that on a motion for judgment, the trial court cannot weigh the evidence but must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. Peter W. Kero, Inc., v. Terminal Construction Co., 6 N.J. 361, 370, 78 A.2d 814 (1951); Cauco v. Galante, 6 N.J. 128, 132, 77 A.2d 793 (1951). Where fair-minded men might honestly differ as to the conclusions to be drawn from the proofs, the questions at issue should be submitted to the jury. Fischetto Paper Mill Supply, Inc. v. Quigley Co., Inc., 3 N.J. 149, 154, 69 A.2d 318 (1949); Antonio v. Edwards, 5 N.J. 48, 52, 74 A.2d 307 (1950).

Defendant insists that the trial court committed reversible error in denying its motion for judgment at the conclusion of the case, and rests its argument upon two main propositions, viz., (a) that plaintiff's proofs failed as a matter of law to establish any actionable negligence on the part of the defendant, and (b) that plaintiff was guilty of contributory negligence as a matter of law. The theory of the defense with respect to the first of these propositions is that the negative testimony submitted by the plaintiff to the effect that no statutory road crossing signal (R.S. 48:12--57, N.J.S.A.) was heard prior to the accident is entitled to no weight in the presence of the affirmative evidence of defendant's employees to the effect that both the bell and whistle on the engine were in operation, and, therefore, does not create a conflict of evidence justifying the submission of the question to the jury as one of fact. On the basis of the record we cannot agree with this conclusion.

Plaintiff's witness, Stanley Kaminski, whose car preceded that of the plaintiff by some 100 feet testified that he stopped when he came to the crossing, put the car window down to listen for a bell, looked both ways, saw nothing and heard nothing and crossed over. Plaintiff himself swore that he stopped his automobile, with its headlights on, about 30 feet west of the main line track, looked both to the right and left, but heard 'no bell or nothing'. When asked whether he heard the whistle of the train, plaintiff answered 'They don't have a whistle on it. They have a little bell but I did not hear it'. He also testified that the bell stationed at the crossing was not ringing and he did not see the train coming. Obviously both of these witnesses were in a position to have heard the engine bell or whistle if either had been sounded within the required distance as the train approached the crossing, and to have heard the stationary bell at the crossing if it had rung. Since plaintiff's witnesses were apparently attentive, on the lookout for warning signals, in a position to have heard if any had been given an testified that they heard none, the mere fact that defendant's witnesses testified affirmatively that the signals were given, does not, under the well settled rule in this state, remove the question from the domain of the jury. See Ackerley v. Pennsylvania R.R. Co., 130 N.J.L. 292, 299, 32 A.2d 449 (E.&A.1943); Mazanek v. Penna.-Reading Seashore Lines, 125 N.J.L. 394, 396, 15 A.2d 885 (E.&A.1940); Fernetti v. West Jersey & S.R.R. Co., 87 N.J.L. 268, 271, 93 A. 576 (E.&A.1914); Note: 162 A.L.R., pp. 9, 52 et seq.

Defendant also contends that whether the crossing bell was ringing or not is immaterial on the question of defendant's negligence, since plaintiff did not rely upon the bell to warn him of an approaching train but made an independent observation for that purpose. Therefore, it is claimed, if the crossing bell failed to ring, such failure was not the proximate cause of the accident, citing Horandt v. Central Railroad Co., 78 N.J.L. 190, 194, 73 A. 93 (Sup.Ct.1909). The cited case, assuming it to have been rightly decided, has no application to the case Sub judice. The situation in the Horandt case was the reverse of that presented by the case at bar. There the plaintiff's case rested upon the theory that they were totally unaware of the existence of the crossing, and that no adequate warning of its existence was given. The case Sub judice presents a situation both of Scienter and alleged care commensurate with the known and obvious danger inherent in the environment, a combination of circumstances manifestly presenting a jury question. The 'Crossing Act' of 1909 (R.S. 48:12--84, N.J.S.A.) enacted after the occurrence of the accident in the Horandt case, provides, in substance, that where a railroad company has installed safety devices, such as a bell, at any grade crossing, a plaintiff, under specified conditions, shall not be barred of his action for failure to stop, look and listen before passing over such crossing. This statute, as we view it, was an additional make weight in plaintiff's favor under the circumstances of the instant case. Baer v. Lehigh & Hudson River Ry. Co., 93 N.J.L. 85, 87, 106 A. 421 (Sup.Ct.1919), affirmed, Id. 93 N.J.L. 446, 108 A. 253 (E.&A.1919).

Defendant also argues that plaintiff was guilty of contributory negligence as a matter of law. The theory advanced for this contention is that the plaintiff, having chosen not to rely entirely upon the...