Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and SCHOONMAKER, District Judge.
At the railroad crossing there was a bell designed to give warning of the approach of a train. There was, of course, a bell on the engine. In this suit for death at the crossing, the testimony for the plaintiff was that neither bell was ringing; for the defendant, that both were ringing. Being within city limits, the engine whistle was not sounded.
The court charged the jury that it was the duty of the defendant to give adequate warning; that if it gave warning by either bell, that is, even if the crossing bell, being out of order, was not ringing, yet the engine bell was ringing, the plaintiff could not recover. Although we might assume from the verdict for the defendant that both bells were ringing and must assume that one or the other was ringing, we shall, in order clearly to raise and squarely meet the matter of law assigned as error in the instruction, assume that the engine bell rang and that the crossing bell was out of order and did not ring.On this assumption and by virtue of the New Jersey Railroad Crossing Act of 1909 (chapter 96, page 137 [3 Comp. St. NJ. 1910, p. 4238, § 36b]), as she interprets it, the plaintiff says she cannot be defeated in this action even if the decedent were guilty of contributory negligence in not stopping or looking or listening as he approached the track, that is, as we understand it, in not exercising any care on his part, and maintains, therefore, the court erred in submitting a question of contributory negligence to the jury. The applicable law (act of 1909) provides in part that where a railroad has installed a bell at a grade crossing and it is out of order, unless a notice to that effect has been posted, persons approaching the crossing shall be entitled to assume that the bell is in good order, and that in an action brought for injuries or for death caused at a crossing so protected "no plaintiff shall be barred of the action because of the failure of the person injured or killed to stop, look and listen before passing over said crossing."
The pertinent facts, shortly stated, are as follows:
Joseph Masino, son of the plaintiff, was killed by one of the defendant's trains at a grade crossing in the city of Camden, New Jersey. At the trial there was evidence that the accident occurred in daylight on a clear winter morning; that the young man, driving a truck, was familiar with the crossing; that 28 feet from the rail nearest him there was an unobstructed view in the direction from which the train was coming of 1732 feet -- one-third of a mile; that the train was moving at about 25 miles an hour and the truck at about 20 miles; that on approaching the track the driver neither stopped, looked, nor listened, nor was he observed to do anything else to protect himself, but, trailing another truck (which barely got across), he came on at undiminished speed and ran into the train. When the question of contributory negligence arose the plaintiff, not being able to prove that the decedent did look or did listen, relied on the presumption of law in case of a decedent that he had done everything for his own protection which the law required him to do. It may be observed that this, after all, is only a presumption, and that, ordinarily, it may be rebutted by evidence that he did not exercise the required care. On a sufficient showing, ordinarily, the presumption falls. But the plaintiff maintains that by force of the cited act it remains, or, stated differently, the statute eliminates all questions of contributory negligence on the theory that when a bell or gate or other device of warning is not operating it is, unless posted as "out of order," an invitation to the traveler to cross -- and to cross without the exercise of care in any degree for his own safety. And such, indeed, seems on first view to be the law as declared by the Court of Errors and Appeals of New Jersey in Snuffin v. McAdoo, 93 N.J. Law, 231, 107 A. 422. In that case the facts -- except that the crossing bell was out of order and did not ring -- were not stated. Seemingly the question of law, submitted and decided, centered on the decedent's contributory negligence in failing to "stop, look and listen." The court, having referred to the act, said:
"Therefore, under the conditions which confronted the deceased, at the crossing, he was relieved from any obligation 'to stop, look, and listen' before starting to cross the railroad tracks. He had a right under the statute to rely on the warning of the crossing bell for his safety, and, in the absence of the notice 'out of order,' was entitled to assume that it was safe for him to cross the tracks. In view of the statutory declaration [that 'no plaintiff shall be barred of action because of the failure of the person injured or killed to stop, look and listen before passing over said crossing'] the argument, of counsel of appellant, that if the deceased had looked he could have seen the train approaching before going onto the track, and that his failure to look was contributory to his injury and death, and that therefore the plaintiff's right of action was barred, is obviously without legal force."
We quote all of the pertinent part of this short opinion because, in so far as we have been informed, it is the first case on the statute in New Jersey, and for the reason that in succeeding cases decided by the Supreme Court of that state, which though an intermediate appellate tribunal is of sufficient importance to compel observance of its decisions, Erie R.R. Co. v. Hilt, 247 U.S. 97, 38 S. Ct. 435, 62 L. Ed. 1003, the principle seems not to have been closely followed.
In the next case -- Passarello v. West Jersey & S.S.R.R. Co., 98 N.J. Law, 790, 121 A. 708 -- involving the same act relating to safety gates, bell, and other devices at crossings, the Court of Errors and Appeals held that on being open or silent they constitute an invitation to cross and, therefore, the statute imposes a duty upon the railroad to operate them rightly, otherwise it would be guilty of primary negligence which the court said, of course, must be found in order that questions of contributory negligence may be rested upon it, intimating, though not deciding, that the act of 1909 had not eliminated all questions of contributory negligence in cases of crossing accidents.
The kindred Crossing Act of April 12, 1910 (P.L. p. 490 [3 Comp. St. N.J. 1910, p. 4238, § 36c]), provided that in an action against a railroad company to recover for injuries or death at any crossing without safety gates or warning device the plaintiff shall not be nonsuited for contributory negligence but the question shall be left to the jury.
In Lynch v. Pennsylvania Railroad Co., 88 N.J. Law, 408, 96 A. 395, 398, construing this statute as involving matter of procedure rather than of substance, the Supreme Court determined whether the evidence sustained the finding that the plaintiff was not guilty of contributory negligence, by obeying the law that when approaching a place of known danger he should exercise reasonable care for his safety, on facts as to the position of the traveler and unobstructed view much weaker than those in this case, and found he did not look or else looked ineffectively, and negligently contributed to his injury.
Again construing the act of April 12, 1910, as affecting procedure, the Supreme Court in Stryker v. Pennsylvania R. Co., 104 N.J. Law, 299, 140 A. 451, 452, said:
"While this act precluded control of the case by the court at the trial through nonsuit or directed verdict, the fundamental rule that contributory ...