On appeal from the Supreme Court (Salem Circuit).
For the plaintiff-appellant, Thomas G. Hilliard and Joseph Narrow.
For the defendant-respondent, French, Richards & Bradley (Floyd H. Bradley and Blaine E. Capehart, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered for the defendant upon the striking of the amended complaint on the ground that it did not set forth a cause of action. The suit arose out of a collision which occurred November 24th, 1937, between a locomotive owned and operated by the defendant company and an automobile truck, wherein plaintiff's intestate was riding, at a grade crossing in the borough of Pennsgrove, Salem county, New Jersey, at a point where Pitman street intersects the railroad tracks and right of way of the defendant company.
Plaintiff brought the suit to recover damages for the death of Domenico Di Giendemonica, alleged to have been caused by reason of the negligence of the defendant company.
The defendant moved to strike the allegations, as contained in the amended complaint on the ground that the same were frivolous and did not set forth a good cause of action against the defendant.
The amended complaint in substance alleged that the negligence of the defendant consisted of the following: (a) the defendant operated its locomotives and cars at the time and place specified at an unusual rate of speed and at a rate of speed that was greater than was usual at that place; (b) that by and with the consent and approval of the Board of Public Utility Commissioners the defendant immediately prior to November 24th, 1937, had operated its locomotives and trains at the crossing, at a rate of speed not in excess of five miles per hour, and was further negligent in that on said date and at said crossing, the defendant operated its locomotives and cars at a rate of speed greatly in excess of five miles per hour; (c) that for a long time prior to November 24th, 1937, defendant had operated its locomotives and trains over said crossing at a rate of speed not in excess of five miles per hour, and that as a result of defendant's continuous operation of its said locomotives and trains at said rate of speed, the traveling public, of which plaintiff's intestate was one, had become accustomed thereto, and governed themselves accordingly; that plaintiff's intestate had full knowledge of this practice and in operating his automobile governed himself in accordance therewith and in dependence thereon, but that on the day in question the defendant operated its locomotive and cars at a speed greatly in excess of five miles per hour and thus created a special circumstance, making the said crossing one of unusual peril and in this way obligating itself to erect and maintain at said crossing, by virtue of having made the same an unusually dangerous one, additional precautions and safety devices, such as gates, automatic lights or the stationing of a flagman to give warning to the traveling public of the approach of its said locomotives and trains; (d) that as a
result of defendant's continuous operation of its locomotives and trains at said rate of speed, five miles per hour became the usual rate of speed for said crossing, and the general traveling public in approaching and traversing said crossing governed themselves in accordance therewith, as did the plaintiff's intestate at the time of said accident, but that on the day in question defendant operated its locomotives and cars at a rate of speed greatly in excess of five miles per hour and at a rate of speed that was greater than was usual at said crossing.
Stated succinctly, plaintiff's contention is, that where defendant railroad company has, through long practice, known to the members of the general public, of whom plaintiff's intestate was one, led users of its crossing to anticipate the operation of defendant's trains at a speed, at that point, not in excess of a certain rate per hour, the increase in that speed or rate of operation of defendant's trains over said crossing, without notice to the public of the change in speed, or adoption of safety precautions by defendant company, constitutes a situation from which negligence may be inferred.
Plaintiff's counsel says that he has been unable to find any decision of a New Jersey court in which the question has been dealt with but cites as authority for his contention Haller v. Pennsylvania Railway Co. (Pennsylvania Supreme Court), 159 A. 10; Klein v. United Railways and Electric Co. (Maryland Court of Appeals), 137 A. ...