Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Jayne, J.A.D.
At about midnight on March 15, 1951 the plaintiff, while operating his motor vehicle at a moderate speed in a westerly direction on Meadow Avenue in Lakewood, came into collision with a gondola freight car of the defendant which had been permitted temporarily to occupy the unlighted and unguarded railroad crossing. The plaintiff prosecuted this action to recover from the defendant compensatory damages for the bodily injuries and incidental losses which he sustained in the mishap. At the conclusion of the introduction of the plaintiff's evidence relating to the issue of the defendant's liability, the court upon motion granted a judgment of involuntary dismissal of the plaintiff's alleged cause of action.
True, the case was one where upon a motion 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 additionally 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).
Where there is no proof of actionable negligence for which the defendant can be lawfully held responsible, the question of the existence of contributory negligence is immaterial. Freschi v. Mason , 108 N.J.L. 272 (E. & A. 1931); Cohen v. Borough of Bradley Beach , 135 N.J.L. 276 (E. & A. 1947).
However, in the present case it was concluded that there was an absence of prima facie proof of the defendant's negligence, and it was also resolved that the plaintiff was as a matter of law guilty of contributory negligence.
The propriety of the dismissal on the ground that the plaintiff had failed to establish to a prima facie degree the alleged negligence of the defendant presents a more argumentative subject, the essence of which in the present case
implicates, with the other accompanying conditions and circumstances, the nature of the construction of the railroad crossing by the defendant and the use made of it by the defendant at the time of the accident.
It is an acknowledged principle of law that where a railroad company by its own acts has caused a crossing to be abnormally hazardous to travellers on the public highway, it is under the duty to use extra precautions commensurate with the unusual risk thus created. The following decisions are informative: Pennsylvania R.R. Co. v. Matthews , 36 N.J.L. 531 (E. & A. 1873); Del., Lack. & W.R.R. Co. v. East Orange , 41 N.J.L. 127, 134 (Sup. Ct. 1879); New York, L.E. & W.R.R. Co. v. Randel , 47 N.J.L. 144 (E. & A. 1885); Consolidated Traction Co. v. Chenowith , 61 N.J.L. 554, 559 (E. & A. 1898); Hires v. Atlantic City R.R. Co. , 66 N.J.L. 30 (Sup. Ct. 1901); Danskin v. Penna. R.R. Co. , 76 N.J.L. 660 (E. & A. 1909); Horandt v. Central Railroad Co. , 78 N.J.L. 190 (Sup. Ct. 1909); Jones v. Pennsylvania R.R. Co. , 78 N.J.L. 571 (E. & A. 1910); Kyle, Adm'x. v. Lehigh Valley R.R. Co. , 81 N.J.L. 186 (Sup. Ct. 1911); Ross v. Director General , 94 N.J.L. 295 (Sup. Ct. 1920); State v. New York, S. & W.R.R. Co. , 104 N.J.L. 226 (Sup. Ct. 1928), affirmed 105 N.J.L. 253 (E. & A. 1928); Tota v. Penna. R.R. Co. , 104 N.J.L. 330 (E. & A. 1928).
At the Meadow Avenue railroad crossing the defendant chose for its convenience to locate its main line of tracks on top of an artificially constructed elevation of about ten feet in height on its right-of-way over which travellers on the avenue at that place are obliged to pass. In approaching the crossing from the east the surface grade of the avenue does not materially ascend until one reaches a point about 45 feet from the center of the railroad tracks, from which location to the ridge the degree of the ascent is about ten per centum. A photograph in evidence exhibits the condition.
On the dark night of March 15, 1951, when it was noticeable that for some reason the municipal street lights adjacent
to the east and west sides of the railroad right-of-way were not illuminated, the defendant's crew stationed a gondola freight car on the crossing directly obstructing the path of vehicles on the avenue. The insistence of the appellant is that the defendant's crew failed to provide any caution signal or safeguard whatever to forewarn motorists of the unusual stationary presence of the freight car at that location, hence the defendant had ...