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Stewart v. Norton

Decided: October 11, 1950.

MAE M. STEWART, ADMINISTRATRIX, ETC., PLAINTIFF-APPELLANT,
v.
HENRY K. NORTON, TRUSTEE, ETC., DEFENDANT-RESPONDENT



Jacobs, Bigelow and Jayne. The opinion of the court was delivered by Bigelow, J.A.D. A dissenting opinion was delivered by Jayne, J.s.c.

Bigelow

[9 NJSuper Page 223] This action results from a grade crossing accident. On a dark and snowy winter afternoon, plaintiff's decedent was driving his automobile along Warburton

Avenue, in Hawthorne, and across the tracks of the New York, Susquehanna & Western Railroad, when he was struck by the locomotive of an on-coming train, and killed.

There are three tracks at this point. On one of them, which was used as a siding, were standing a dozen coal cars that screened to some extent the approaching train. The crossing was protected on each side of the railroad by wigwag signals which were swinging, and electric bells which were sounding, while decedent was approaching and when he entered the crossing. For a long time, however, the apparatus had been out of order, so that not only when a train was approaching but often when no train was near, the wigwag would start up and the bells begin ringing. There was evidence from which the jury might conclude that decedent was aware of this condition. The plaintiff charged the defendant (who as trustee was operating the railroad) with negligence in the placing of the coal cars and in allowing the crossing warning devices to remain out of order. The learned trial judge instructed the jury that if there was any negligence on the part of the defendant, it was in the placing of the coal cars on the siding. "If that was not negligence, then the defendant is not guilty of any negligence in this case." The jury brought in a verdict for defendant.

The question argued before us is whether the judge erred in refusing to submit to the jury the issue whether the defendant was guilty of negligence in permitting the crossing signals to remain out of order. We will proceed on the theory that there was negligence in this respect, for a company that voluntarily installs a signal bell at a crossing, is bound to use due care in the upkeep and operation of the device. Wolcott v. N.Y. & L.B.R.R. Co. , 68 N.J.L. 421 (Sup. Ct. 1902); Brown v. Erie R.R. Co. , 87 N.J.L. 487 (E. & A. 1915); Rendino v. Davis , 99 N.J.L. 213 (E. & A. 1923). The traveller has a right to assume that the bell will ring if a train is about to pass the crossing. Berry v. Penn. R.R. Co. , 48 N.J.L. 141 (E. & A. 1886). And see Rest. Torts (Negligence) , ยง 301, comment F , and also R.S. 48:12-84.

But the defendant's negligence would be immaterial and should not enter the deliberations of the jury unless it may have been a proximate cause of the accident. Smith v. Public Service Corp. , 78 N.J.L. 478 (E. & A. 1910). A warning signal that clangs alarm when no danger threatens, may be likened to the boy in the fable who cried, "Wolf, wolf!" A traveller who has been deceived by the signal on previous occasions, may be tempted to disregard it; so that the crossing is not a great deal safer than if no signal apparatus had been installed. But the plaintiff must go further; the defective wigwags and bells cannot be considered a proximate cause of the accident unless their presence created a hazard. Horandt v. Central R.R. Co. , 78 N.J.L. 190 (Sup. Ct. 1909); approved, s.c. , 81 N.J.L. 488 (E. & A. 1911). The meaningless ringing of a bell at the crossing might be a source of danger if it were so loud as to down the sound of the approaching train, but the evidence indicates that this was not the fact in the case before us, and appellant's counsel does not predicate his argument on this basis. Instead, he argues that a crossing bell that rings whether or not a train is coming, is an invitation to travellers, indicating that they may cross the tracks in safety. He urges that such a bell is like crossing gates that remain upright when they should be down, or like a bell that does not ring at all. The assurance given by the open gates or the silent bell is readily grasped, Passarello v. West Jersey, etc., R.R. Co. , 98 N.J.L. 790 (E. & A. 1923), but the clamor of the alarm cannot be construed to mean that no train is at hand.

There was no error in withdrawing from the jury the question of negligence in failing to keep the signal system in repair. The judgment is affirmed.

A dissenting opinion was delivered by JAYNE, J.S.C.

My consideration of this case obliges me to disagree with the conclusion expressed by my associates. I acquiesce in the following passages contained in the majority opinion: "The crossing was protected on each side

of the railroad by wigwag signals which were swinging, and electric bells which were sounding, while decedent was approaching and when he entered the crossing. For a long time, however, the apparatus had been out of order, so that not only when a train was approaching but often when no train was near, the wigwag would start up and the bells begin ringing. There was evidence from which the jury might conclude that decedent was aware of this condition. * * *

"We will proceed on the theory that there was negligence in this respect, for a company that voluntarily installs a signal bell at a crossing, is bound to use due care in the upkeep and operation of the device. Wolcott v. N.Y. & L.B.R.R. Co. , 68 N.J.L. 421 (Sup. Ct. 1902); Brown v. Erie R.R. Co. , 87 ...


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