On defendant's certified appeal from the Appellate Division of the Superior Court, affirming several judgments for plaintiffs rendered in the Law Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt and Justices Heher, Oliphant, Burling and Jacobs. For reversal -- None. The opinion of the court was delivered by Heher, J.
The question here is whether the circumstances attending a railroad grade-crossing collision bespeak contributory negligence as a matter of law precluding recovery by the injured operator of the motor vehicle and the next of kin of his fatally injured companion and fellow servant in a common employment.
This was deemed to be an issue of fact for the jury; and the propriety of the submission is the subject of inquiry here. There was a verdict of $50,000 for Battaglia, and $75,000 for the administratrix. The Appellate Division of the Superior Court affirmed the consequent judgments. The cases are here by certification at the instance of the defendant trustee. 15 N.J. 380.
The collision occurred May 6, 1952, at 6:45 P.M., Daylight Saving Time, in North Bergen, New Jersey, at the grade crossing formed by the intersection almost at a right angle of Secaucus Road, running generally east and west, and the southbound tracks of the New York, Susquehanna and Western Railroad Company and the northbound tracks of the Northern Railroad, four sets of tracks in all. By agreement, the two easterly sets of tracks were used by both Susquehanna and the Erie Railroad Company for passenger and freight traffic, northbound, and the two westerly tracks for southbound traffic. There was an area 56 feet wide between the northbound and southbound tracks, extending north of the crossing and 2,000 feet to the south, free of obstruction save a succession of telegraph poles running midway both north and south of the crossing, about 69 feet apart (29 of which were south of the crossing), and a mound of earth covered by grass and plant life rising from 2 1/2 feet to between 5 and 7 feet, according to the varying estimates of witnesses. The crossing was protected as a single unit. There were an automatic electric flasher, bell signals, and the standard cross-bar warning device at the extreme westerly side of the crossing, on the southerly side of Secaucus Road, and at the extreme easterly side of the crossing, on the northerly side of
Secaucus Road. The flasher and bell signals were activated by train and rail contact within the signal circuit, north of the crossing on the Susquehanna or southbound tracks and south of the crossing on the Erie or northbound tracks. There was a siding 75 feet north of the crossing, extending from the westerly Susquehanna track into a packing plant.
Battaglia and the deceased Dann were on their way to New York in their employer's 1924 Mack truck, and in his service. When they reached the crossing, coming from the west, Susquehanna was engaged in a freight-car drilling or switching operation on its westerly southbound tract in connection with the siding north of the crossing, and Battaglia brought his vehicle to a stop. The crossing flasher and bells were in action. After a lapse of five minutes, Susquehanna's brakeman, Terwilliger, disconnected the rear seven cars of the train then obstructing the crossing, at a point 75 feet north of the crossing, and the engine and ten cars, Terwilliger aboard the last car, proceeded south until the last car had passed over the crossing, when the train was halted on a signal given the engineer by Terwilliger, who thereupon alighted and, standing at the right rear and to the west of the last car, at a point not more than 20 feet south of the crossing, according to the plaintiffs' proofs, signaled the waiting drivers of vehicles on the west side of the crossing, among them Battaglia, first in line, to pass over the crossing. The adverse crossing signals the while remained in action; the detached cars were still within the signal circuit, and the signal contact continued. Proceeding over the crossing at the rate of between five and eight miles an hour, the truck was struck by a northbound Erie train. It was raining at the time. Battaglia testified the brakeman called to him as he gave the onward signal by a wave of the hand: "Go ahead, nobody is coming." The brakeman denied that, by word or deed, he gave the safe-crossing sign. He insisted that all his hand signals were directed to the train engineer alone; there is the suggestion of misinterpretation, although this could not be true of his oral direction to Battaglia. But
the brakeman agreed he heard no whistle or bell signal from the engine of the oncoming Erie train, and he was unaware of its approach until the occurrence of the collision, and the "sole purpose" of moving the train from the crossing was to permit the flow of vehicular traffic over the crossing. He said: "We held the crossing five minutes, or about five minutes. According to law, you are not allowed to hold it any longer than that, so naturally I had to clear up the crossing and let traffic cross." Although this was a scheduled Erie train, and he had on prior occasions worked with a drill engine at the particular time, and trains had "probably passed by at that time," he did not know "for sure that there was a train scheduled at that time." The giving of the clear signal was affirmed by all the occupants of motor vehicles in line following Battaglia's vehicle, and by four boys also waiting to go over the crossing on foot. To all the hand signal signified crossing safety. Terwilliger had but four months' experience as a brakeman. Erie was absolved of responsibility by the jury.
Conceding that the evidence raised a jury question as to Terwilliger's guilt of negligence attributable to Susquehanna under the common-law maxim of respondeat superior, it is yet insisted that Battaglia and his fellow worker were not entitled to rely "entirely" on the brakeman, "who was in no position to make a better observation than they;" that "upon clearing the freight, they were in a superior position and bound to use reasonable care to make an independent and reasonably effective observation for their own safety," and the conclusion is irresistible either (a) that Battaglia "made his last observation when he reached the line of poles," where "he could not possibly see," or (b) "kept looking all the way past the poles but didn't see or hear the Erie train until it was upon him," and "proceeded heedlessly from a place of safety into the very path of the locomotive which he must have seen and heard," and so there was a departure from the common-law standard of duty so clear and indubitable as to put the question beyond the realm of fair debate. Reliance
is placed upon Berry v. Pennsylvania R. Co., 48 N.J.L. 141 (E. & A. 1886); Pennsylvania R. Co. v. Pfuelb, 60 N.J.L. 278 (Sup. Ct. 1897); Swanson v. Central R. Co., 63 N.J.L. 605 (E. & A. 1899); Conkling v. Erie R. Co., 63 N.J.L. 338 (E. & A. 1899); George Siegler Co. ...