On appeals from the Supreme Court.
For the plaintiffs below, Robert V. Carton and J. Victor Carton.
For the defendants below, John A. Hartpence.
The opinion of the court was delivered by
PARKER, J. The two cases arise out of a collision between a train and an automobile at a private crossing in Monmouth county, and were combined in one record, pursuant to section 4 of the Practice act of 1912 (Pamph. L., p. 377) and paragraph (b) of rule 211 of the Supreme Court. The deceased Gifford was the owner and driver of the automobile; the deceased Gravatt was a passenger, and was, as the jury could find, standing on the runboard of the car on the side away from the train. In the Gifford case, the trial court directed a verdict for the defendants, obviously on the ground of contributory negligence, as will presently appear. In the Gravatt case, a nonsuit and direction for defendant were both refused, and the case went to the jury, who found for the plaintiff. The general theory of the court submitting the Gravatt case to the jury was that negligence of the railroad servants was a jury question, and that as to contributory negligence, any such negligence of Gifford was not imputable to Gravatt and that it was for the jury to say whether Gravatt had been shown guilty of any act or omission to act in regard to his own safety which amounted to contributory negligence on his part.
Taking up the Gifford appeal first: we may assume that the railroad company owed him a duty of care at the crossing, and that there was a lack of care resulting in the accident. This phase of the case will be discussed more fully in connection with the Gravatt case. Suffice it to say at this point that the terrain was in general terms an open field, substantially level, and that the private road crossed the railroad, a single track line, about at right angles. It was about seven thirty A.M. on April 27th, 1935, a Saturday. The weather was clear. On standard time, which according to the witness Halloway was in effect, the sun must have been over two hours high; on daylight time, over an hour. It is not entirely clear which time was in effect, but the point is of little consequence. There were no obstructions to the view in any direction except a few trees, not yet in leaf; telegraph poles; and some low banks of earth, in part incidental to the construction of a golf links which was going on, the banks in question looking as if designed to prevent golf balls rolling on the track. At one point there is a shallow cut; but the photographs marked in evidence on both sides are illuminating, and the evidence generally as to the terrain is in our view convincing that no one about to cross the track and looking for a train, as it would be his duty to do, could fail to see it in ample time to stop and avoid it, even though it was running at about sixty miles an hour. We see no need to go into the details of the evidence. Suffice it to say, that contributory negligence of Gifford was so clearly shown as to remove the matter from the control of the jury and place it in that of the court. It is not suggested that the statute of 1910 (Pamph. L., p. 490) applies, and probably not, as that act by its title is limited to crossings of public streets and highways, and as already observed, the road in question was a private crossing. The judgment in the Gifford case will be affirmed.
Turning to the Gravatt case: Gravatt, as we have said, was a passenger on Gifford's car. Both were employes of one Bennett, who owned the tract of land through which the railroad and the private road ran, and was adapting it for use
as a golf links. It is in evidence that the private road had been in a different place, and had been moved by the railroad company, which constructed the new crossing and was under a duty to maintain it pursuant to section 26 of the Railroad act (Comp. Stat., p. 4231) or perhaps under an old charter, which, however, was not put in evidence, but which doubtless contains similar provisions about crossings, as all the old railroad charters did. See for example, the charter of the Farmingdale and Squan Village Railroad Company, Pamph. L. 1867, p. 574 (at pp. 578, 579), § 9. The railroad in this case may be said, for practical purposes, to run from east to west, and the private road from south to north, crossing the railroad about four miles west of Manasquan. In the angle between the south side of the railroad and the east side of the private road was the fourteenth green of the golf links, still incomplete as we understand the matter. Gravatt was on or near that green, on foot. Gifford, driving his car alone, stopped at the green and as a result of a short conversation told Gravatt to get on the automobile and he would take Gravatt to the clud house, a short distance away on the other side of the track. Gravatt, on the left runboard, as already stated, was in a position where his view of a train to the east was necessarily somewhat obstructed; but like any other passenger, he was entitled to rely on the driver exercising due care. He was also in a place where if danger suddenly impended, he would be obliged to decide instantaneously whether to stay on the automobile or jump off, or perhaps take some other action. What happened was, that with the train in plain sight, Gifford undertook to cross the track, the automobile was struck squarely amidships on the right side, and both men were killed.
The case is submitted on briefs. For the railroad the first point made is that both men were trespassers or, at best, licensees as to the railroad, and that the company owed them no duty of care. We deem this entirely without substance. By statute, the railroad was under a duty to provide and maintain that crossing as connecting the two parts of Bennett's land. Bennett was of course entitled to use it as of
right; and the same right naturally extended to persons in Bennett's employ in connection with his land. Requests to charge predicated on a ...