On appeal from the Superior Court, Appellate Division whose opinion is reported in 9 N.J. Super. 222.
For affirmance -- Chief Justice Vanderbilt and Justices Case, Heher, Burling and Ackerson. For reversal -- Justice Oliphant. The opinion of the court was delivered by Ackerson, J.
[6 NJ Page 593] Randall E. Stewart was killed when the automobile he was driving was struck by the engine of a train
of the New York, Susquehanna and Western Railroad Company at a grade crossing in the Borough of Hawthorne. His widow, Mae M. Stewart, instituted this action as administratrix of his estate and also as administratrix ad prosequendum under the "Death Act," R.S. 2:47-1 et seq., against the trustee of the railroad company to recover damages resulting from his death. Judgment was entered in favor of the defendant in the trial court on the return of a jury verdict of no cause of action. The Appellate Division of the Superior Court affirmed, and, since one judge dissented, the plaintiff has appealed here as a matter of right pursuant to Rule 1:2-1(b).
The record discloses that the mishap occurred on the afternoon of February 4, 1948, at the point where the railroad company's three sets of tracks, running north and south, intersect Warburton Avenue, a public highway, running east and west. The two tracks nearest to the easterly approach of Warburton Avenue to the crossing were used only as sidings, while the third or most westerly track was the main line for through traffic.
The decedent approached the crossing at about 3:45 o'clock in the afternoon travelling in a westerly direction on Warburton Avenue. There was a heavy fall of fine snow and visibility was poor. There were 13 coal cars standing on the middle siding to the north of the crossing (to the decedent's right), the nearest being 34 feet therefrom, so that from a point 6 feet east of the first siding (the direction from which the Stewart car was approaching) and 10 feet south of the northerly curb line of the highway there was a view of 66 feet up the main line track in the direction from which the train came, and, of course, this distance gradually increased as a traveler moved past the first siding. There were also 12 coal cars standing on the middle siding to the left or south side of the crossing.
On the edge of the highway at each side of the crossing the railroad company had installed a signaling apparatus to warn of approaching trains, consisting of an automatic "flagman" commonly known as a "wigwag." These devices were of a type approved by the Public Utility Commission and, in addition
to the wigwags or swinging arms and a standard loud ringing bell 14 inches in diameter, there were also affixed to each structure a cross-buck sign bearing the words "Railroad Crossing," a shield reading "Look and Listen," lighted by an oil lamp, a reflex button sign displaying the words "Stop when Swinging" and an electric light in the semaphore arm which lighted up, night or day, when the arm was in motion. These signaling devices were designed to operate continuously from the time a train entered the electric contact circuit until it passed out of it. For a train proceeding in a southerly direction, as in the case of the train in question, the circuit is designed to start the wigwags operating when the train is about 1700 feet away from and continue until it has passed over the crossing.
On the occasion in question both of these automatic signaling devices were operating -- the bells were ringing and the swinging arms were moving -- as plaintiff's intestate came to the crossing. According to the testimony of eye-witnesses who were approaching the crossing from the opposite direction, the Stewart car came to a stop about six feet east of the easterly track and after waiting several seconds started to cross over with the crossing signals still operating and on reaching the main track was struck by the oncoming train. These witnesses also testified that they heard the engine's whistle blow "almost continuously" after leaving North Hawthorne station, some 1986 feet to the north, until the train reached the crossing, and this was corroborated by the engineer and other witnesses. The engineer stated that the engine's headlight was on because of the snowstorm; that the engine bell weighing 51 pounds had rung continuously from the time the train began its run at Butler, several miles to the north, and he blew the whistle at the signal point 100 feet south of the North Hawthorne station giving two long and two short blasts which he repeated at the Central Avenue crossing, 713 feet north of Warburton Avenue, and it had blown continuously from that point to the latter crossing. The foregoing facts do not seem to have been controverted. Additionally it should be noted it was not
shown that the train was going at an excessive rate of speed and tests made shortly after the fatal occurrence disclosed that the crossing signals were working properly.
Among the specifications of negligence in the complaint is the charge that the defendant permitted its crossing signals to be out of order so that for long periods of time the bells rang and the wigwag signals operated continuously whether or not trains were actually approaching the crossing. On her main case the plaintiff attempted to offer testimony in support of this asserted ground of negligence. However, the trial judge, on defendant's objection thereto, refused to receive it at that time on the ground that it was not evidential of defendant's primary negligence, but he also ruled that it could be introduced later in rebuttal of the defense of contributory negligence. When it finally came in during the course of the plaintiff's rebuttal it was to the following effect: Louis Bay, mayor of Hawthorne, testified that he had passed over this crossing about five times a week during the period of six months prior to the occurrence in question and had noticed the crossing signals operating on 20 to 25 occasions when no train came through for possibly five minutes; that on many other occasions the signals were operating and a train came through in less time, and conversely on other occasions the signals were not operating and no train crossed. George Grillo, borough clerk, testified that he used the crossing on an average of four or six times daily five days a week, during the same period. He observed that, at specified times, the signals were operating while a train was standing in plain view either at the North Hawthorne station to the north or at the Diamond Bridge crossing 1478 feet to the south, picking up and discharging mail, ...