On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Ackerson, J.
The plaintiff, George Siegler Co., brought this action in the Superior Court, Law Division, against Henry K. Norton, trustee of the New York, Susquehanna & Western Railroad Co., for property damage to plaintiff's truck resulting from a collision with one of defendant's trains at an unguarded grade crossing. The accident occurred at 10:40 A.M. on March 19, 1948, at the intersection of Lundy's Lane and the defendant's tracks in the Town of Secaucus, in Hudson County, and resulted not only in the destruction of the truck, but in the death of its operator, an employee of the plaintiff, referred to in the record as "Tony."
Lundy's Lane is a narrow and little used road leading from Tonnelle Avenue down to and over the railroad right-of-way on which were maintained two sets of westbound tracks and two sets of eastbound tracks, eight rails in all. Between the eastbound and westbound tracks there was an intervening space of from 30 to 50 feet (allowing for the range expressed in the testimony) and this space was sufficient to permit a truck, such as the plaintiff's, to stop thereon in safety from passing trains. The crossing was not guarded by any mechanical signaling device, safety gates or flagman, since apparently the highway at that point was not of the class which called for protection (R.S. 48:12-54) other than the ringing of a bell or the blowing of a whistle or horn from an approaching engine (L. 1948, c. 252, p. 1115, § 1; N.J.S.A. 48:12-57) and the standard crossing signs (R.S. 48:12-58) which had been erected on each side of
the railroad right-of-way bearing the words "Stop, Look and Listen."
The train involved in the accident was eastbound and plaintiff's truck, coming from the north, would have to cross first the two sets of westbound tracks, then the above mentioned intervening space, before coming to the first eastbound track on which the accident occurred.
The plaintiff produced only one witness as to the occurrence of the accident. He was A. Louis Gandalfo who, at the time of the occurrence, was engaged in dumping fill near the crossing. He testified that he was standing on top of an embankment situated about ten feet back from the outside westbound track (on the westbound side of the crossing) when he first observed plaintiff's truck go down Lundy's Lane and come to a stop parallel to the point where he was standing. He recognized the driver, Tony, and after waving to him resumed his work. He then heard a crash and turning around saw the "dump body fly around." Running down to the tracks he found the truck "all smashed up" in front of defendant's diesel engine about 300 feet up the eastbound track (the first reached after crossing the strip of ground between the two sets of tracks) and the body of the driver lying near it.
Gandalfo said he did not see Tony or the truck after it had stopped at the first set of tracks until after the collision and, therefore, was unable to supply any information concerning the conduct of the driver in the interim. The witness said he did not hear any whistle or bell sounded from the engine and did not hear the train's approach, but admitted he was not listening for it. He further testified that there were some swamp weeds about six feet high between the two sets of tracks but he did not say they would prevent the driver of the truck from seeing the approaching train. His only testimony concerning the view a person would have from the crossing along the right-of-way to the right of the truck (the direction from which the train came) was "You can't see half a mile up the track." No other testimony was
produced by the plaintiff concerning the happening of the accident.
The first witness for the defendant was the fireman, Sytsma, who was in the cab on the left side of the locomotive at the time in question. He testified as to his familiarity with the locus in quo and said that Lundy's Lane at that point is about 30 feet wide, has very little traffic and a person with normal eyesight, standing or sitting in a vehicle at the crossing, could observe an engine approaching, as this one was, from the vehicle's right, for at least half a mile away. However, the fireman, from his seat in the cab on the left side of the locomotive, could not see the crossing until he was about 300 feet therefrom because back of that point there is a very slight curve in the tracks bearing to the right as you go in an eastbound direction and the fireman's view ahead was therefore on a slight angle away from the crossing and obstructed by the hood of the engine until it came out of this curve 300 feet from the crossing. At this point the witness saw the plaintiff's truck for the first time coming over the first set of westbound tracks and proceeding at about six or seven miles an hour. The train was then traveling at a speed of from 40 to 45 miles an hour, which was well within its maximum speed limit of 60 miles an hour. This witness said that when the dump truck reached the plot of ground separating the westbound and eastbound tracks it continued on at the same slow speed. Then he saw that the driver of the truck was not looking in the direction of the on-coming train at all and realizing that the driver was not going to stop in the middle space, as was the practice with trucks using that crossing, the fireman shouted to the engineer, who controlled the emergency brake from the opposite side of the cab, to stop the train. The brake was applied immediately but the train could not be stopped in time to avoid the collision.
With regard to signals, Sytsma testified that two long blasts, followed by two short blasts of the whistle, were sounded by the engineer ...