Eastwood, Jayne, and Francis. The opinion of the court was delivered by Jayne, J.A.D.
Good fortune cannot be depended upon to govern the operations of an automobile. Chance seldom favors the inattentive and incogitant driver, and the folly of drinking and driving is frequently costly.
This cause is somewhat unique in that there is no divergency whatever in the testimony relating to the circumstances accompanying and surrounding the occurrence of the mishap. On the afternoon of December 27, 1951, a collision occurred at the Ridge Road railroad grade crossing east of Whitehouse in the Township of Reading, Hunterdon County, between an automobile owned by the defendant Charles Kugler and occupied on that occasion by his brother Albert E. Kugler and Margaret Elizabeth Buono, and a diesel engine drawing five cars operated by the Central Railroad Company of New Jersey. Both occupants of the automobile were killed.
The testimony places us in possession of this information. On the morning of December 27, 1951, Margaret Elizabeth Buono expressed in the presence of Albert E. Kugler her intention to visit North Branch during the day in quest of employment. Albert announced his willingness to transport her. At about 11:15 A.M. they arrived at the Union House in Whitehouse where each consumed two drinks of whiskey. At about noon they entered Dot's Bar and Grill on Route No. 22 where each had about four drinks of whiskey and a sandwich. They departed about 1:30 P.M. and a half-hour later visited the Hickory Grove Tavern where Margaret
drank one glass of whiskey and Albert tossed down two. Shortly thereafter they were lifeless.
The plaintiff in the capacity of administratrix ad prosequendum of Margaret Elizabeth Buono, deceased, sought in the present action the recovery of damages from the Central Railroad Company, the estate of Albert E. Kugler, deceased, and Charles Kugler for the pecuniary losses sustained by the next-of-kin of the decedent in consequence of the fatal mishap.
In response to the motions of counsel an involuntary dismissal of the plaintiff's alleged cause of action against the railroad was granted at the close of the plaintiff's case, and a like dismissal of the action against the estate of Albert Kugler and against Charles Kugler eventuated at the conclusion of the trial. The appeal challenges the propriety of the dismissals of the plaintiff's alleged causes of action against the railroad company and the estate of Albert Kugler.
We perceive no error in the dismissal of the action against the railroad company. Negligence or a circumstantial basis generating a logical or legitimate inference of its existence must be established by competent proof. Oelschlaeger v. Hahne & Co. , 2 N.J. 490 (1949); Callahan v. National Lead Co. , 4 N.J. 150 (1950); Hansen v. Eagle-Picher Lead Co. , 8 N.J. 133 (1951); Gentile v. Public Service Coordinated Transport , 12 N.J. Super. 45 (App. Div. 1951); Murphy v. Terzako , 14 N.J. Super. 254 (App. Div. 1951).
Where there are no disputed facts or disputed inferences to be drawn from the uncontroverted facts, it devolves upon the court to declare the judgment that the law imposes. Kaufman v. Pennsylvania Railroad Co. , 2 N.J. 318 (1949); Gentile v. Public Service Coordinated Transport, supra; Layton v. Healy , 12 N.J. Super. 459 (App. Div. 1951); Riley v. Weigand , 18 N.J. Super. 66 (App. Div. 1952); Clinton Milk Co. v. May's Dairy Co., Inc. , 19 N.J. Super. 559 (App. Div. 1952).
The reasons for reversal advocated by counsel for the appellant are unsubstantial. The scene of the accident possessed the usual characteristics of a rural railroad grade crossing. There were no extraordinarily hazardous conditions. The fact that the requisite statutory crossing signal was given by the engineer is not controverted. The operation of a railroad train in open territory at a speed of 45 to 50 miles an hour is neither inordinate nor beyond the extent of reasonable anticipation of a motorist in undertaking to pass over an unguarded railroad crossing. In the other particulars, it suffices to say that cogently pragmatical reasons arising out of the dissimilar conditions, circumstances, and available operational limitations have influenced the law to differentiate the duties of those in control of the operation of a railroad engine from those of a motorist where their paths intersect. Vide, Jelinek v. Sotak , 9 N.J. 19 (1952), confirming the right of a railroad engineer to assume that motorists in the exercise of due care, recognizing the train's right of way, will not attempt to cross the tracks in front of the approaching train. In the uncontroverted circumstances of the present case it would be fanciful rather than logical to infer that but for the failure of the fireman to observe the approach of the automobile the train might have been stopped and the collision would not have occurred. The judgment in favor of the railroad company is affirmed.
Our examination of the propriety of the involuntary dismissal of the plaintiff's cause of action against the general administratrix of the estate of Albert Kugler, deceased, ...