McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
It was about 6:30 P.M. on December 16, 1948, amid the fall of a drizzling rain intermixed with sleet that Joseph Sotak was driving his delivery truck southwesterly on Jersey Avenue in a suburb of the City of New Brunswick. He was accompanied by Frank Jelinek. They were approaching the locality where a single spur line of railroad tracks, known as the Millstone Branch, of the Pennsylvania Railroad crosses the highway from the east in a slightly southwesterly direction.
Contemporaneously a diesel locomotive operated backward was slowly drawing eight freight cars from the east. The uncontroverted fact is that on the westerly side of the highway a collision occurred between the delivery truck and the diesel engine.
The present litigation ensued consisting of the action of Sotak against the railroad company and the action of Jelinek against both Sotak and the railroad company. The actions
were consolidated for trial, and pursuant to the determinations of the jury a judgment of no cause for action in favor of the defendant was entered in the action prosecuted by Sotak and a judgment was recorded in favor of Jelinek against both defendants in his action with an award to him of $15,000 damages.
The three appeals now before us constitute the outgrowth of the trial. The railroad impugns the judgment rendered against it in favor of Jelinek; Sotak feels aggrieved by the judgment imposed upon him in favor of Jelinek and is further distressed by the judgment of no cause for action which eventuated in his own case against the railroad. The transcript of the evidence has accordingly been studied in its relationship to each appeal.
In its essential characteristics the present case was one where upon motions for dismissal the trial judge was obliged to accept as true all evidence which supported the view of the party against whom the motion was made and required to accord him the benefit of all inferences which might logically and legitimately be drawn therefrom, and to recognize that the existence of negligence and contributory negligence are preeminently questions of fact for the jury. Gentile v. Pub. Service Coordinated Transport , 12 N.J. Super. 45 (App. Div. 1951).
We are importuned by counsel for the appellant railroad to place this mishap in the category of those in which it has been held that the mere fact that a freight car or locomotive was momentarily standing in actual possession of a highway crossing is not of itself prima facie proof of negligence. Jacobson v. N.Y., S. & W.R.R. Co. , 87 N.J. Law 378 (Sup. Ct. 1915); Nadasky v. Public Service Railroad Co. , 97 N.J. Law 400 (Sup. Ct. 1922); Morris v. Atlantic City Railroad Co. , 100 N.J. Law 328 (E. & A. 1924).
The conspicuous factual element in those cases is that the railroad train was not in motion and was in possession of the crossing at the time the highway traveller collided with the
train and not the converse situation more commonly presented. Vide, Pilkington v. Central R.R. Co. of N.J. , 125 N.J. Law 22 (E. & A. 1940).
In the present case both the locomotive and the automobile were approaching an unobstructed crossing in pursuance of a common right of passage but in circumstances in which the operator of the train was obliged to give the statutory crossing signals. R.S. 48:12-57. The failure to give the statutory warning when and where required has long been regarded as evidence of negligence. Walling v. Central R.R. of N.J. , 82 N.J. Law 506 (E. & A. 1911). Wilson v. Central R.R. Co. , 88 N.J. Law 342 (E. & A. 1915). Here also the locomotive was proceeding toward and entering the crossing at a speed of one or two miles per hour, a ...