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Pilkington v. Central Railroad Co.

Decided: April 25, 1940.

MADELYN F. PILKINGTON, AS ADMINISTRATRIX OF THE ESTATE OF GEORGE H. PILKINGTON, JR., DECEASED, AND AS ADMINISTRATRIX AD PROSEQUENDUM OF GEORGE H. PILKINGTON, JR., OTTO H. FRITZSHE AND MAURICE RADUS, PLAINTIFFS-APPELLANTS,
v.
CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from the Supreme Court.

For the plaintiffs-appellants, McCormack & O'Keefe (William J. McCormack and John E. Selser).

For the defendant-respondent, William F. Hanlon and DeVoe Tomlinson.

Bodine

The opinion of the court was delivered by

BODINE, J. This appeal is from a judgment of nonsuit. The plaintiffs sued to recover damages for injuries suffered

by reason of an accident occurring on the evening of November 23d, 1936, at a point where route 31 New Jersey State Highway intersects the grade crossing of the defendant railroad in the borough of Somerville.

Norman A. Smith invited the deceased and the two other plaintiffs to drive in his automobile to attend a dinner of the Ten Year Club, an organization composed of employes in the State Highway Department of ten years standing. He operated the car at a speed of between thirty-five and forty miles an hour. The evening was very dark and cloudy. The country is open and the driver of the car and his guests were on the alert, since the point of intersection of the railroad with the highway was newly constructed and the men were interested in the way in which the car would ride over the intersection. The car was being driven in a southerly direction. The engineer sounded no whistle and rang no bell, while approaching the crossing. When the driver of the automobile was within forty-six to fifty feet of the railroad track he saw a light flash by. This was in the cab of the engine which was approaching from the west and traveling east. Immediately applying his brakes and swerving in a westerly direction the automobile collided with a car of the train and injuries occurred which need not now be recounted.

Our statute requires that a bell shall be rung or a steam whistle sounded (except in cities) beginning at least 300 yards from the crossing and continuing until the engine shall cross the highway. R.S. 48:12-57. The failure to give the statutory warning has been regarded by this court as evidence of negligence which would take the case to the jury. Walling v. Central Railroad, 82 N.J.L. 506.

The court in granting the nonsuit based the judgment upon the theory that the railroad's obligation of warning ceased after it had gotten its engine across the traveled portion of the highway. It is possible that this may be the rule of law when a train is standing across the highway, but the statute does require a bell or whistle to be sounded from a distance of 300 yards from the crossing until the engine has crossed the highway and the failure so to warn might conceivably be the proximate cause of the accident in this case,

since the driver of the automobile earlier warned of the approach of the train and aware of the proximity of the crossing might have checked his speed so as to avoid that which occurred.

It is argued in behalf of the respondent that the nonsuit was proper since the automobile ran into the train and the train ...


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