On appeal from the First District Court of Jersey City.
For the defendants-appellants, Collins & Corbin.
For the plaintiff-respondent, Edward M. Smalley and Victor Ruskin.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The main question involved in this appeal is whether a railroad company which erects, uses, maintains and controls a crossing warning device (a concrete block signal tower) in the center of a public highway a few feet in front of its tracks which crosses a highway, in pursuance to a request granted it by the Public Service Commission (State Division of New York) and the government in which it is located (East Waverly, New York) is liable to one who has sustained damage by reason of the alleged negligent manner in which the obstruction is maintained?
This question arises under the following stipulated and undisputed testimony. On the misty and foggy night of June 11th, 1930, at about three-thirty A.M., the plaintiff's automobile, driven at a reasonable rate of speed, collided with the signal tower of the defendant company, located in the center of a public highway in East Waverly, New York. The signal lights in the tower light up and flash only at such time as a train approaches the crossing. The damage of $269.90 is admitted. The basis of the plaintiff's action is that the structure, although legalized, was maintained by the defendants in a negligent manner, that is, that the failure to equip the tower with a warning light when trains were not about to cross the highway, &c., made it a nuisance. The defense was that the construction and maintenance of the structure was legally authorized by the State Division of the Public Service Commission of the State of New York and the government of East Waverly, New York, where it is located. That the railroad received the authority as claimed
by it, is admitted. Did this authority relieve it of liability towards the plaintiff in the premises? The court below in the first instance decided that it did. Later, on the return of a rule to show cause why a new trial should not be granted, or, a judgment entered in favor of the plaintiff, the court made the rule absolute, vacated the judgment entered in favor of the defendants and entered a judgment in favor of the plaintiff. The accuracy of that determination is now before us.
In the case of W.B. Wood Co. v. Balsam, 100 N.J.L. 275; 126 A. 480 (Supreme Court case), suit was brought on the theory of a private nuisance for damages done to one of plaintiff's trucks by coming into collision with a fire escape projecting over the highway. Under statutory authority the state department of labor ordered, and defendant in compliance thereto, placed the fire escapes on the building. Mr. Justice Lloyd held:
"Here, the damage which the plaintiff company sustained was through a collision on the public highway with a structure not only authorized, but required by law, and which the property owner could not avoid placing where it was. Those using the highway were obliged to take cognizance of this lawful construction, and to govern themselves accordingly. There is no vested or property right in the use of the highway which the state cannot circumscribe or curtail. Public highways are changed in their direction and even vacated without liability to the user of the highway, as such, to complain. It must be carefully observed that the claim in this case is not based upon a property right in the highway by reason of an abutting owner, but for injury to a truck which might as well have belonged to an owner in another city or state. Nor is there here alleged any element of negligence; the sole contention being that the construction itself constituted a private nuisance for which the defendant would be liable."
In the case of Denzer v. Delaware, Lackawanna and Western Railroad Co., 103 N.J.L. 95, suit was brought against the railroad company alleging ...