On appeal from the Supreme Court.
For the appellants, Bleakley, Stockwell & Burling.
For the respondent, Thompson & Hanstein.
The opinion of the court was delivered by
LLOYD, J. In an action to recover damages resulting from the death of two persons and injuries to two others arising out of a collision between a train of the Atlantic City Railroad Company and an automobile in which they were riding, there was a judgment of nonsuit on the plaintiffs' opening, and from this judgment the plaintiffs appeal.
The pertinent parts of the opening are as follows: The occupants of the car were proceeding from Atlantic City to Whitesboro, in the southern section of the state, and missing their road, found themselves in Egg Harbor and asked for directions. They were told to take the first road to the left and to continue on across the railroad tracks to Mays
Landing. Passing the road indicated they came to Liverpool avenue, and mistakenly took this avenue to cross the railroad. Liverpool avenue runs at right angles to the railroad, but terminates there. Instead of stopping at the end of the road, however, the parties proceeded on across the tracks of the railroad when they were struck by a train of the defendant.
On its right of way defendant maintains four tracks, the easterly two being sidings for loading and unloading freight. The surface of the roadbed of these two tracks is level with Liverpool avenue and made of the same dirt material. The two main tracks were of stone ballast with the rails above the surface. To reach the point of collision the car passed over the freight tracks. The opening was further that no warning of any kind was given of the approach of trains and that no lights, fences or guards were maintained to warn those using Liverpool avenue of the presence of the railroad tracks or that the street terminated there.
It is contended by the appellants that this situation developed a liability on two grounds: First, that the railroad company had created a nuisance so near to the highway as to be a source of danger to those normally using the highway. We think this is wholly without merit and calls for no discussion. Second, that the railroad company under the above state of facts had given to the approach to its tracks and freight station the appearance of a public highway from which an invitation to its use by the traveling public could be implied. We think this contention is also unsound.
The roadbed and the right of way were the exclusive property of the railroad company. The tracks and the approach seemed to be of the usual construction adopted by railroad companies in the cities and towns of the state. The siding tracks were used to connect with the company's freight station and for the accommodation of industries. To utilize them for these purposes it was natural, if not essential, that these tracks be on a level with the soil, and it so happens that the soil of the right of way at these tracks is of the same material as that of Liverpool avenue; neither of which seems
to have been paved. In so far as appears from the opening both of these conditions may have existed in the ...