On appeal from the Superior Court, Appellate Division, whose opinion is reported in 13 N.J. Super. 130.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
[9 NJ Page 21] This is a railroad crossing accident case involving a collision between an automobile delivery truck owned and operated by Sotak and a diesel locomotive of the defendant railroad company. Jelinek was a passenger in Sotak's truck. The litigation consists of an action by Sotak against the railroad company and an action by Jelinek against both Sotak and the railroad company. The causes were consolidated for trial and as the result of jury verdicts a judgment of no cause for action was entered in favor of the defendant-appellant here in the action prosecuted by Sotak and one entered in favor of Jelinek against both defendants in the sum of $15,000. On appeal to the Appellate Division the judgment was affirmed. On petition of the railroad company we certified the causes to the Appellate Division.
This appeal by the railroad company from the judgment entered in favor of Jelinek is concerned exclusively with alleged errors in the charge of the trial judge. There is no merit in these assertions of error except as they relate to Sotak's tenth request to charge which was charged in the following language:
"Well, it was the duty of the engineer to make reasonable and proper efforts, in view of the circumstances, to foresee and avoid collision, including the duty, if he saw that there was possible danger of collision, to exercise reasonable care and diligence to avoid it, by stopping his engine. * * *" (Italics supplied.)
We deem such a charge clear and prejudicial error.
The request to charge was taken verbatim from the opinion in Taylor v. Lehigh Valley R.R. Co., 87 N.J.L. 673, 675 (E. & A. 1915). The rule there stated is ineptly phrased and is subject to misunderstanding. As phrased it places an undue burden on a railroad company, one it is not required to bear, to stop its engine if there is a possible danger of collision. The instruction in the Taylor case fitted the facts as there existed which bear no similarity to those existing here. In that case the engineer in the exercise of diligence and reasonable care could have seen that the plaintiff's automobile was stalled on the crossing, in time and at such a distance so as to have stopped the train before colliding with it. Here both the train and the automobile were slowly in motion at or approaching the crossing.
The Taylor case exhibits an application of the controlling rule which is stated fully in Rafferty, Adm'r., v. Erie Railroad Co., 66 N.J.L. 444 (Sup. Ct. 1901). There the court stated it is the duty of the "engineer and fireman, if they see that there is possible danger of collision, to exercise reasonable diligence and reasonable care to avoid it" and the court then went on to define the diligence and reasonable care required to be exercised from the point where the engineer and fireman became aware of the possibility of a collision. The court said:
"The law is that while at highway crossings the railway company has the prior right of passage as against the traveler, still both parties must exercise care and diligence in regard to their respective duties, and are charged with the mutual duty of exercising reasonable care to prevent injury. Each must make reasonable and proper efforts, in view of the circumstances, to foresee and avoid collisions, and each may, to a limited extent, rely upon the other to exercise such ordinary care." (Italics ours.)
There is nothing in this language that requires an engineer to stop a train merely because of the possible danger of a collision. There are reciprocal rights and duties involved. The engineer can rightfully assume that travelers in the exercise of due care with due regard to the railroad's right of way, will not attempt to cross the tracks. But if in the exercise of reasonable diligence it should become apparent that the traveler in disregard of due care or the railroad's right of way will or is attempting to cross the crossing before the train so that a collision will probably result, then from that point on the engineer must with all reasonable care and diligence attempt to stop the train. If he does so then there is no negligence. Cf. Telfer v. Northern Railroad Co., 30 N.J.L. 188 (Sup. Ct. 1862).
The duty resting upon a railroad is to use reasonable care to so operate the train as it approaches a grade crossing with due regard to its right of way, as to protect travelers who in the exercise of due care are about to cross the tracks and whether it discharged its duty under all the facts and circumstances is usually a matter for the jury to determine. Even as to those who in disregard of due care may attempt to cross the tracks in the face of an oncoming train or to one whose vehicle may be stalled or stopped on the tracks the duty of reasonable care and diligence still rests on the railroad. Cf. Webb v. West Jersey and Seashore Railroad Co., 100 N.J.L. 204 (Sup. Ct. 1924).
We do not subscribe to the view that the use of the words "possible danger of collision" in the Taylor opinion when read in proper context gives rise to the imputation that the railroad ...