On appeal from the former Supreme Court.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Burling, J.
The appellant, who was the plaintiff below, appeals from judgments entered upon verdicts for the defendants returned by a jury in the former Supreme Court. The action was brought by the appellant as administratrix ad prosequendum of the estate of Alex Kaufman, deceased, against Saul Weidenfeld, operator of the motor vehicle in which plaintiff's decedent was riding at the time of his death and against the Pennsylvania Railroad Company, the operator and George E. Cox, the engineer of a railroad engine with which Weidenfeld's vehicle collided.
A resume of the evidence is expedient.
The appellant's decedent was riding on the rear seat of a passenger sedan driven by the defendant Weidenfeld, whose wife was also riding on the rear seat. No one occupied the right front seat. The relative positions of the passengers on the rear seat do not expressly appear. Weidenfeld testified that he and his wife had inspected some real property which he contemplated purchasing and that he invited Kaufman to come along and give him the benefit of advice. On the day of the event, which was clear and sunny, at approximately 2:30 o'clock in the afternoon, Weidenfeld was driving the vehicle in a westerly direction along the Farmingdale-Adelphia Road in Monmouth County. The car approached a grade crossing of the defendant railroad company's right of way at a speed of approximately 25 to 30 miles per hour. At this crossing the tracks intersected the road at an angle which from the direction from which Weidenfeld's vehicle approached was an obtuse one, the tracks running from northwest to southeast. The crossing was guarded with two sets of flashing red warning lights, each set containing dual lights facing in each direction along the highway and in addition was surmounted by a crossing sign of the crossbuck type, R.S. 39:4-183.22; the one to Weidenfeld's right as he approached being located at the side of the road 4.6 feet east of the tracks. In addition to the lights there was a warning sign located 453 feet east of the crossing on the northerly side of the road, of the type referred to in R.S. 39:4-183.21. The
terrain was level and there were no cuts in the right of way to the northeast.
As Weidenfeld's vehicle approached the crossing the engine and tender of the defendant railroad company were moving toward it from the northwest, that is, from his right-hand side. Both the engineer Cox and the fireman testified that the engine was traveling in reverse so that it was preceded by its tender and that they were approaching the crossing at a speed of 25 to 30 miles per hour and that in compliance with the mandate of R.S. 48:12-57, the whistle was blown and the bell rung continuously from a point 300 yards from the crossing until after the crossing was passed. Their testimony in this respect was corroborated by that of others present at or near the scene who it was alleged had opportunity to see and hear. Weidenfeld testified that the warning lights were not working and that he heard neither the whistle nor the bell on the locomotive. He testified that upon approaching the crossing there was no impairment of his vision by trees or shrubbery or otherwise between himself and the locomotive; that he saw the locomotive when he was 200 feet from the crossing and judged it to be about 300 feet therefrom but that he assumed that it was moving away from him; that he heard nothing from the passengers on the rear seat either in the form of statements, conversations or movements, as the automobile was proceeding toward the crossing.
Upon entering the crossing the car was struck in the center of its right side by the tender and carried sidewise astride the tracks for a distance of approximately 300 feet from the road to a point where the engine stopped. Weidenfeld was knocked unconscious and remained behind the steering wheel. His wife and Kaufman were dead when the train crew came to their assistance after the crash.
The question of primary negligence as to all defendants was in dispute.
The statement of questions involved pertain to the alleged contributory negligence of the decedent. They arise out of the charge of the court. A quotation of request No. 8 of the defendants Pennsylvania Railroad Company and George E. Cox which was granted and charged, will serve to illustrate
the principles which the trial court deemed controlling. These principles guided the remaining actions of the court complained ...