On appeal from the Supreme Court.
For the plaintiffs-respondents, Albert L. Kushinsky (Robert A. Lederer, of counsel).
For the defendant-appellant, John A. Hartpence.
The opinion of the court was delivered by
WELLS, J. These two cases arose out of a collision between a train and an automobile at a public crossing in Ocean County. They were consolidated for trial at the Ocean Circuit and are combined in one record here.
Motions for nonsuits and for directed verdicts in favor of the defendant were denied by the trial judge and the questions involved were submitted to the jury for determination. The jury rendered verdicts in favor of the plaintiffs in both cases, and these appeals are from the judgments entered thereon.
At the conclusion of the plaintiffs' case there was testimony to the effect that at about 8 o'clock in the morning of February 5th, 1942, a Ford truck was being driven in a general southerly direction along Lacey Road, a public highway, in the Township of Manchester, by the decedent, Ackerley, in which the decedent, Trauzettel, was riding as a passenger and the truck approached the track of the defendant-railroad company at a point where the track intersects Lacey Road or Crossing, a public highway near Whitings.
It was snowing very hard. While visibility was good in clear weather yet because of the wind and driving snow it was poor on the day in question, but by the use of a windshield wiper there was little difficulty in seeing in the direction in which one was traveling.
The general area was wooded with scrub oak and pine, except for a strip along the railway right-of-way 100 feet on either side of the track, which is called the fire line.
The train operated by defendant approached the Lacey crossing traveling west, and the truck approached from the north, traveling south. There was a collision at the crossing in which both Ackerley and Trauzettel were killed. At the time of the accident, they were on their way to work, being
employed by the county in road work. There was no evidence that they were engaged in a joint enterprise.
The plaintiffs produced in their behalf one Charles Anderson, a fish peddler, who said that on the morning of the accident he was driving alone in his Dodge truck and as he was just coming off of the Toms River Road on to the Lacey Road he heard three or four blasts of the train whistle, that the last blast was heard by him when he was traveling in a general northerly direction between 20 to 40 feet in Lacey Road at a point indicated by an "X" on Exhibit P-1, which point was 2,400 feet south of the railroad crossing. Anderson said that his hearing was good; that he continued to travel in a general northerly direction toward the crossing at the approximate speed of between 15 to 20 miles per hour; that the windows of his truck were down; and that he traveled a distance of some 1,900 feet along Lacey Road to a point marked "O" on Exhibit P-1 (which took about a minute), without hearing any further blasts of the whistle of the locomotive; said point "O" being between 300 to 400 feet south of the crossing. When he got to the point marked "O," he heard three or four short, sharp blasts of the whistle and within two seconds thereafter he heard a crash and saw the train pass over the crossing on the westerly side of the intersection. He could not say that after he heard the first series of whistles he was listening for further signals. He did not hear the bell ringing at any time. For four years he had traveled north twice a week over this road about the same time in the mornings and was well acquainted with the surroundings. On the day in question, because of the weather and the fact that he was approaching the railroad crossing he was traveling slowly and carefully. After the ...