On appeal from a judgment of the Supreme Court.
For the appellant, Cox & Walburg (Harry E. Walburg, of counsel).
For the respondent, Harry Phillipson.
The opinion of the court was delivered by
HEHER, J. On September 11th, 1932, at the hour of three in the morning, there was a head-on collision between an automobile driven by plaintiff and a like vehicle
operated by one Kasper, on the main route of the state highway system extending through the township of Plainsboro, in the county of Middlesex, at a point where an underpass was in process of construction by the Rockefeller Institute, the owner of lands abutting upon the highway; and this action was brought to recover the resulting damage from the contractor employed to do the construction work. A permit for the construction of the underpass, and the necessary incidental obstruction of the highway, was issued by the state highway commission on May 9th, 1932. The gravamen of the complaint was the defendant contractor's asserted negligence in the setting up of barriers and obstructions upon the highway without adequate lighting and warning devices, and in not "properly defining and distinguishing the respective north and southbound traffic lanes." The jury determined the issues in favor of the plaintiff; and from the consequent judgment defendant appeals.
The first and primary insistence of appellant is that there was error in the denial of the motions to nonsuit and direct a verdict in its favor for the following stated reasons, viz.: (1) There was no proof of negligence by defendant; (2) if so, it was not the proximate cause of the collision; (3) plaintiff was guilty of contributory negligence; and (4) he assumed the risk of injury "arising out of and incidental to the use of the highway under the conditions and circumstances then and there existing."
These motions were rightly denied. This is the state's principal vehicular highway. It runs north and south, and carries the bulk of interstate traffic. The locus consisted of a concrete surface twenty-nine feet wide, with a gravel shoulder on either side. The width of the easterly shoulder was between ten and twelve feet. The concrete's surface was divided into three traffic lanes by well-defined white separation lines. A barricade, composed of heavy beams with a picket fence thereon, extending from the westerly side of the road almost to the easterly concrete traffic lane, closed this portion of the roadway to traffic for a distance of approximately two hundred and fifty feet. The upper rail was painted in alternate black and white lines along the entire length thereof. The southerly end bore gradually to the westerly side of the roadway. About
fifty feet to the south of the point where this fence turned toward the west, there was another barrier covering the center concrete lane and a small portion of the easterly lane. One of the defendant's witnesses testified that the unobstructed portion of the easterly lane was approximately eight and one-half feet. This barricade likewise consisted of heavy beams resting upon the roadway, with a picket fence above; and there was evidence that it was not painted with black and white alternate lines, or checkerboard squares, as required by section 42 of the Traffic act. Pamph. L. 1928, pp. 721, 757.
Lighted lanterns, with red globes, were placed on the beams of the barrier on the west side of the road, about fifteen or twenty feet apart, while bomb flare lights, the same distance apart, were placed on the line dividing the easterly concrete lane from the shoulder. These flare lights were apparently designed to serve as a line of separation between the temporary north-bound and south-bound traffic lanes. To the north of the barrier located on the west side of the road, immediately to the east of the easterly concrete lane, there was a sign post bearing the inscription "Keep Right;" and this, with an appropriate arrow, diverted traffic moving south to the easterly concrete lane. To the south of the second barrier, in the center of the highway, was a like sign and arrow, directing traffic moving north to proceed on the right thereof. The plan was to move south-going traffic through the easterly concrete lane along the barrier to the westerly traffic lane, passing the second barrier on the west, and to divert north-bound traffic to the easterly gravel shoulder; and the crucial inquiry is whether the means employed were adequate to effectuate this purpose, or fell short of the requirements of reasonable care for the safety of those operating motor vehicles upon the highway.
This is respondent's version of the circumstances attending the collision: He observed the direction of the sign post at the northerly end of the westerly barrier, and proceeded along the easterly concrete lane. He continued in a straight course, along that lane, until he observed the barrier in the center lane, which had one flare light six ...