On appeal from Superior Court, Law Division.
For affirmance -- Justices Case, Oliphant, Wachenfeld and Burling. For reversal -- Chief Justice Vanderbilt. The opinion of the court was delivered by Burling, J.
This is an appeal by the plaintiff from the involuntary dismissal of his civil action by the Superior Court, Law Division. The appeal is addressed to the Superior Court, Appellate Division, but has been certified on our own motion.
The action seeks damages from the defendant municipality because of the death of the plaintiff's wife, Isabel Truhlar, resulting from a collision between an automobile being driven by her and a railroad train being operated on tracks of the New York, Susquehanna and Western Railroad which intersect Van Riper Avenue at the same level as Van Riper Avenue in the Borough of East Paterson, New Jersey. The plaintiff's claim is predicated on the theory of active wrongdoing on the part of the defendant municipality. The substance of the claim is that the defendant municipality laid out and constructed a public road known as Boulevard, along which the decedent was driving toward the railroad crossing, "at such an extra-ordinarily dangerous angle and course in relation to the railroad tracks, and without providing any warning sign or any warning device whatever indicating the presence of a
railroad crossing at that point, that it was thereby guilty of active wrongdoing." The pretrial order limited the trial to the following issues: "(a) whether the defendant municipality was guilty of active wrongdoing in laying out and constructing the Boulevard in the manner in which it did; (b) whether the alleged negligence of the municipality was the proximate cause of the collision and death; (c) contributory negligence of plaintiff's decedent; (d) assumption of risk of a known danger by plaintiff's decedent." At the conclusion of the plaintiff's case, the defendant moved for dismissal of the action on the grounds that there was no proof of active wrongdoing on the part of the defendant nor any proof that the proximate cause of the decedent's death was related to the alleged active wrongdoing of the defendant. The motion was granted and the present appeal ensues therefrom.
A motion for an involuntary dismissal of an action admits the truth of the plaintiff's evidence and every inference of fact which may be legitimately drawn therefrom which is favorable to the plaintiff. Evidence was presented by the plaintiff from which it might have been found that on April 28, 1947, at approximately 9 A.M. the plaintiff's wife was driving alone in an automobile in a southerly direction along Boulevard. Boulevard runs in a northerly and southerly direction and meets another public road known as Van Riper Avenue at a point close to where the latter crosses the right of way of the railroad. Van Riper Avenue runs generally in an easterly and westerly direction. The railroad tracks at the grade crossing run generally in a southeasterly and northwesterly direction. There are two sets of tracks at the crossing. The decedent proceeded along Boulevard and arrived at the crossing of Van Riper Avenue where she traversed the first set of tracks and reached the second set of tracks when the automobile being driven by her was struck by a train approaching from her right.
The proofs produced by the plaintiff consisted of a map and photographs of the locus in quo and oral testimony. There was produced only one person who testified he observed the
collision. His testimony was that he saw the car which was being driven by the decedent when it was 25 or 30 feet from the railroad crossing; that he observed its progress; that it did not stop at the crossing but proceeded across the westbound tracks and reached the eastbound tracks where it was struck by the train. He testified that the railroad bell at the crossing was not ringing. Other testimony was to the effect that, pursuant to ordinances, Boulevard had been constructed by the defendant municipality some years after the establishment of the railroad tracks and Van Riper Avenue and was laid out in relation to the crossing with an acute turn of 60 degrees at the place of intersection and that the safest type of intersection is a right angle and that any deviation therefrom increases the hazard entailed in crossing the tracks because the distance of crossing the tracks is increased as the degree of angle is increased; that there was an absence of warning signs; and that a motorist traveling in a southerly direction on Boulevard could not obtain a view of the tracks at the crossing until he was "practically on top of them."
The plaintiff concedes that the defendant municipality cannot be held liable on the theory of negligence since the building of streets is a governmental and not a proprietary function. Bengivenga v. City of Plainfield, 128 N.J.L. 418 (E. & A. 1942). In the laying out of streets and highways the municipality exercises a power delegated to it by the Legislature, Hackensack Water Co. v. Ruta, 3 N.J. 139, at 146 (1949), and in the performance of a governmental function, the municipality is carrying out a public duty and is not liable for negligence in the performance of such duty in the absence of a statute creating such liability. Buckalew v. Freeholders of Middlesex, 91 N.J.L. 517 (E. & A. 1918). However, "In the absence of statutory provision to the contrary, it is liable for the consequences of active wrongdoing only." Allas v. Rumson, 115 N.J.L. 593, at 600 (E. & A. 1935).
The question involved, therefore, is whether the conduct of the defendant municipality in the ...