On appeal from the Supreme Court.
For the plaintiff-appellant, Parsons, Labrecque & Borden (Theodore D. Parsons, of counsel).
For the defendants-respondents, William F. Hanlon (J. Victor Carton, of counsel).
The opinion of the court was delivered by
FREUND, J. The plaintiff appeals from a judgment entered on a verdict of no cause of action.
This suit was instituted to recover damages for the death of Louis Girardin. The decedent, who had a pre-existing crippled foot, was attempting to cross the railroad tracks located at Bridge Avenue and Monmouth Street in Red Bank, while returning to his place of employment, and was instantly killed by a Pennsylvania Railroad train going in a northerly direction. The accident occurred at a place where the intersection of the two streets is diagonally crossed by the right of way of the railroad and where the defendants maintain a crossing for vehicles and pedestrians. At the crossing in question, there are three sets of gates to protect traffic, but the gates when lowered do not extend over the sidewalks.
The plaintiff contends that the defendants, as the train approached the crossing in question, failed and neglected to sound any whistle or bell, or to give a signal of the approach of the train. The defendants concede that the testimony "was conflicting on whether or not the Pennsylvania train involved gave any signal as it approached the crossing, and the testimony was also contradictory on whether or not the gates in question were down before the plaintiff started across the tracks." There was testimony that defendants' employees were operating pneumatic power drills in making repairs, at or near the crossing in question, which may have prevented the decedent from hearing any signal. The jury returned a verdict of no cause of action.
The appellant argues that the learned trial judge erred because:
"the trial court after charging the jury at the request of the plaintiff that the deceased was absolved from stopping, looking and listening before passing over the railroad crossing where gates were operated, contradictorily charged the jury that the existence of the gates, although negligently operated or maintained, did not absolve the deceased from the duty of observation."
The statutes applicable to the instant matter are R.S. 48:12-82 and R.S. 48:12-84 and were read by the trial court to the jury. Section 82 provides that, where a
"railroad company shall have assumed to establish and maintain safety gates, and such gates ...