McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
At about 8 o'clock in the morning of April 7, 1945, a clear day, an automobile driven by plaintiff, Alta Shirley Gibson, and owned by her father-in-law, the plaintiff, Cornelius Gibson, collided with a train of defendant at a grade crossing in Howell Township, Monmouth County. Mrs. Gibson and her husband recovered a judgment in the Superior Court, Law Division, Monmouth County, for the personal injuries suffered by her in the mishap, and Cornelius Gibson recovered a judgment for his property damage. Defendant railroad appeals.
Mrs. Gibson approached the crossing along a narrow dirt road. The Smith farm, bordering the road to her right, ran up to within a few feet of the railroad track and back from the road some distance along the right-of-way. According to the engineer, the train, en route to Freehold from Farmingdale, proceeded to the crossing past the Smith farm at about 55 miles per hour. No member of the train crew saw the automobile coming to the crossing nor had any knowledge of the collision until there was a sudden escape of steam from beneath the engine, which, after the train stopped beyond the crossing, was found to have been caused by the dislodging of a steam pipe underneath a cylinder at the back of the locomotive where the automobile struck. Mrs. Gibson was thrown from the automobile by the impact, after which the car came to rest in the center of the road a few feet from the track.
From the Smith residence, which faced the road and was situated some 750 feet from the crossing, the dirt road to the crossing was a sequence of dips and rises. The last rise began just short of the track. The railroad maintained a crossing bell at the crossing to warn travelers of the approach of a train.
Mrs. Gibson said that when she reached the crown of a rise about 50 feet short of the track she looked to her right and did not see the train. She testified that she "listened" for but did not hear the crossing bell ringing, nor did she
hear the sound of a train whistle or engine bell. After making the observation to the right, she testified she made an observation to the left, that she was proceeding in second gear at less than ten miles an hour, that she took another "quick" look to the right and the train, coming from that direction, "was right on top of me."
The controverted fact questions were whether the crossing bell was ringing and the locomotive bell or whistle sounding as the train approached the crossing. The train crew testified that both the locomotive whistle and bell were operating and had been for the statutory distance before the train reached the crossing. See R.S. 48:12-57. No testimony was offered, however, that the crossing bell was ringing at the time. A railroad maintenance man testified that the bell operated when he made tests after the collision, but said that, while the bell was designed to start ringing automatically when a train entered a point 2,500 feet from the crossing and to continue ringing until the train had passed over the crossing, his tests were made not at that distance but only at a place about ten feet from the crossing. Four witnesses for plaintiffs, Mr. Smith and three of his farm laborers, all of whom were nearby either in the field or in the road, testified that they did not hear either the crossing bell ringing or the sound of the locomotive whistle or engine bell. Their attention was directed to the mishap either by the crash or by the squealing of the brakes when the train was brought to a stop.
The trial judge submitted the disputed issues to the jury for determination under a charge which included instructions upon the consideration to be given R.S. 48:12-84, the socalled "Crossing Act," L. 1909, p. 137, which "in substance, provides that any person approaching the right of way of a railroad which crosses a public highway and at which a crossing bell has been installed by the railroad company designed to protect the traveling public from danger in passing over the crossing, is entitled to assume such warning appliance is in good and proper order and will be duly and properly operated,
unless a written notice 'Out of Order' be posted in a conspicuous place at such crossing, whereby such traveler will be warned of any danger in passing over said crossing, and that the failure to post such notice shall not bar any action for injuries to person or property, or for death caused at such crossing because of the failure of the person injured or killed to stop, look and listen before passing over the crossing." Snuffin v. McAdoo , 93 N.J.L. 231 (E. & A. 1919).
Appellant argues that in the circumstances of this case it was error to charge, as the court did at plaintiffs' request, the text of that statute and several requests based thereon to the effect that Mrs. Gibson was entitled "to assume that it was safe for her to cross the tracks" if the crossing bell was not ringing because in that circumstance, "in the absence of any notice that the bell was 'Out of Order,' she was absolved from the duty of stopping, looking and listening." We are satisfied that in the text of the entire charge the requests were unobjectionable under the interpretation of the statute laid down by Baer v. Lehigh and Hudson River Ry. Co. , 93 N.J.L. 85 (Sup. Ct. 1919), affirmed 93 N.J.L. 446 (E. & A. 1919); Girardin v. N.Y. & Long Branch R.R. Co. , 135 N.J.L. 135 (E. & A. 1917); Fernetti v. West Jersey and Seashore R.R. Co. , 87 N.J.L. 268 (E. & A. 1915); Hatch v. Erie R.R. Co. , 88 N.J.L. 545 (Sup. Ct. 1916); and Snuffin v. McAdoo, supra. The contention that the charge attributed to the Crossing Act an effect which would "practically make the Railroad Company an insurer of the safety of one crossing its tracks and relieve him of all duty to exercise reasonable care for his own safety" is not supported by a study of the charge, which must, of course, be read in its entirety with due regard to the issues and proofs. Before ...