On appeal from the Supreme Court, whose per curiam is printed in 7 N.J. Mis. R. 581.
For the appellants, Samuel Tartalsky.
For the respondents, Edward A. Markley and Charles W. Broadhurst.
The opinion of the court was delivered by
CAMPBELL, J. These five causes were tried together in the First District Court of Jersey City resulting in judgments in favor of the plaintiffs below.
They all arose out of the same happening in the early morning of September 1st, 1928. Richard Pennell was the driver of an automobile in which the other plaintiffs-appellants were occupants. The car was being driven along a county road in the township of Manville, in Somerset county, and came into contact with a crossing signal device, erected and maintained by the respondents, or one of them, in the center of the highway, at or near its tracks or right of way; in fact there was such a structure in the center of the highway on each side of its tracks, at or near the point where they and its right of way crossed such highway. These structures were not lighted except when a train was approaching the crossing and was within two thousand feet thereof, when and during its continuance in that zone there would be red lights on the structures flashing, alternately.
It appears that permission to erect and maintain these structures was requested from the board of chosen freeholders of Somerset county by the respondents and that such permission was granted. It is insisted that such consent was not granted by proper, formal, action of such board, but with this we think we are not particularly concerned.
At the conclusion of the trial in the District Court motions for direction of judgments in favor of the railroad companies,
defendants-respondents, were made and granted. Upon appeal from these judgments the Supreme Court affirmed them upon authority of Lorentz v. Public Service Railway Co., 103 N.J.L. 104.
This appeal brings before us these judgments of affirmance of the Supreme Court.
It seems most apparent to us that the Supreme Court fell into error in applying the principles of Lorentz v. Public Service Railway Co., supra, to the case in hand. In that case the structure complained of was authorized by a municipal ordinance for which definite and specific legislative authority existed and it therefore became, as it were, a legalized obstruction in the highway which it was within the power of the legislature to authorize. W.B. Wood Co. v. Balsam, 100 N.J.L. 275; Denzer v. Delaware, Lackawanna and Western Railroad Co., 103 Id. 95, are in line with such doctrine.
There is, however, another line of cases, holding to the contrary where specific legislative authority to permit the obstruction of highways does not exist. Of such character are Durant v. Palmer, 29 N.J.L. 544; Opdycke v. Public Service Railway Co., 78 Id. 576, 583, ...