Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D. Jayne, J.A.D. (dissenting).
This appeal involves a railroad crossing accident in which William Ira Pangborn, age 17, was killed and Wilbur Forner, age 15, was injured. In the negligence action which followed against the railroad a jury verdict of $15,000 was returned in favor of the Administrator ad prosequendum of Pangborn, one of $7,000 in favor of Forner for his injuries, and one of $3,000 for his mother, Anna Forner Giarretta, for consequential losses. The mother's verdict was reduced on appropriate motion to $1,250.
The railroad appeals, charging principally that it was error to deny the motion to dismiss which was made on the ground that both the decedent and Forner were guilty of contributory negligence as a matter of law. Determination
of the problem necessarily requires a consideration of the facts.
Washington Avenue, Dunellen, the scene of the mishap, runs north and south and crosses six mainline east and west-bound tracks of appellant Central Railroad Company at grade. The six sets of tracks are divided by an open iron picket fence which terminates at the westerly line of Washington Avenue. The fence is in the center of the track right of way so that three sets of west-bound tracks are on the north side thereof and three sets of east-bound tracks are on the south side. A map introduced in evidence designates the most northerly east-bound track as No. 1, the middle one, No. 3, and the most southerly east-bound track as No. 5. On the other side of the fence, the first or most southerly west-bound track was designated as No. 2, the middle one, No. 4, and the outside or most northerly west-bound track as No. 6.
The crossing is protected by gates which when down extend across the roadway of Washington Avenue and the public sidewalks on the easterly and westerly side thereof. At the southwesterly corner of the crossing there is a watchman's tower overlooking the tracks where the operator of the gates is stationed.
West of Washington Avenue along the northerly side of the right of way there are a newsstand, then the west-bound passenger station and, some distance farther along, a freight house, the westerly wall of which is 417 feet from Washington Avenue. To the rear of the freight house are two sets of tracks which appear to lead into track No. 6 near the next intersecting public street, Prospect Avenue, which is 623 feet from Washington Avenue.
In front of the west-bound station and between it and track No. 6 there is a paved walk by means of which persons alighting from trains walk east to Washington Avenue. This path is 12 feet 6 inches wide between the newsstand and Washington Avenue. When the crossing gate is down there is a distance of 7 feet between it and the northerly rail of track No. 6.
On the southerly side of the tracks an east-bound passenger station is located.
Some distance east of Washington Avenue and on the north side of track No. 6 a freight yard is located. It appears without dispute that the use of track No. 6 was not limited to west-bound traffic. Some west-bound passenger trains out of New York terminated their run at Dunellen. Upon the discharge of passengers such trains would be backed in an easterly direction along No. 6 past Washington Avenue, then shunted off to the north into the freight yard or round house area on a track which ends about 1,000 feet east of the station. That is where they would "tie up." There was testimony also that trains back east on track No. 6 into this area "at night, any time" and pick up cars. It appears also that in the morning some passenger trains for New York start on track No. 6, cross Washington Avenue, then switch over to track No. 1 or No. 3 and continue east toward their destination. And one of the photographs in evidence shows a switch which begins in plain view at track No. 6 about at the easterly side of Washington Avenue and crosses the intervening rails to the east-bound tracks. Freight trains operate back and forth, east and west, along track No. 6 across Washington Avenue and between the freight yard and the freight house and the side tracks which are west of the passenger station. One railroad witness described track No. 6 as an "unassigned track."
On April 3, 1951 three boys, William Pangborn, Wilbur Forner and Robert Reuter, left Dunellen High School for the lunch recess; all of them lived south of Washington Avenue. In proceeding toward their homes they went across railroad property, walked between the west-bound passenger station and the newsstand and came on to the paved walk already described, which runs from the station to Washington Avenue.
On reaching the walk, they turned east and proceeded toward Washington Avenue. Reuter, the only one who testified about these events (Pangborn having been killed and Forner, because of his head injury, having no recollection of them), said that when they came on to the walk ...