On appeals from Superior Court, Appellate Division.
For reversal as to plaintiff Pangborn -- Justices Heher, Wachenfeld, Jacobs and Brennan. For affirmance as to plaintiff Pangborn -- Chief Justice Vanderbilt, and Justices Oliphant and Burling. For affirmance as to plaintiff Forner -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal as to plaintiff Forner -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.
[18 NJ Page 89] Three high school boys, walking to their homes from school along their usual route which would take them across defendant's tracks at the Washington Avenue crossing at the east end of defendant's Dunellen passenger station, passed between the westbound station and a newsstand and thence walked 123 feet down
the platform, a pavement at grade 10 to 12 1/2 feet wide, to the crossing, where they stopped and waited within the boundaries of the sidewalk because a long, fast and noisy westbound freight was passing through on Track 2. The crossing gates were down and the boys stood in the seven-foot space between the gate lowered across the sidewalk and the near rail of Track 6. That track and Tracks 4 and 2, in that order from the platform, are on the westbound side of the station and are separated from the three tracks fronting on the eastbound station by an iron picket fence in the middle of the right-of-way. The boys stood abreast, facing east in the direction from which the fast freight was coming on Track 2, the westbound track next to the picket fence. William Pangborn, aged 17, was the closest to and within two or two and one-half feet of the near rail of Track 6. Wilbur Forner, aged 15, was to Pangborn's left, about four feet from the rail. Robert Reuter, aged 16, was to Forner's left, near the lowered crossing gate and about six feet from the rail. The boys were standing in that way about ten seconds before the mishap which gave rise to this action occurred.
Unknown to the boys and not heard by them, a drill engine proceeding at not more than five miles an hour was pushing two freight cars along Track 6 from a freight house 417 feet behind the boys to the freight yard beyond the Washington Avenue crossing. The lead car overhung the near rail of Track 6 an estimated two feet and five inches. The overhang struck the unsuspecting Pangborn boy in the back and crushed him to death under the forward truck of the car which was derailed and came to a stop about 66 feet beyond. The Forner boy was thrown away from Track 6 and toward the lowered gate, suffering a severe head injury which has left him without any memory whatever of the events of that day. Reuter escaped uninjured. He was unable to say, however, whether the freight car also hit Forner or whether he was propelled when struck by Pangborn's flying body. The conductor on the lead freight car, who was standing on a ladder on the far side of the car within a foot or two
of the front of the car, testified that it appeared to him that the car "knocked the one boy up agin the other one."
The complaint joins actions for Pangborn's death and Forner's injuries. Verdicts for the plaintiffs in both actions were returned by a Middlesex County jury. The Appellate Division reversed the Pangborn judgment by a divided vote, but unanimously affirmed as to Forner. 32 N.J. Super. 289 (1954).
The Pangborn appeal is here as of right under R.R. 1:2-1(b) by reason of the dissent in the Appellate Division. The railroad attempts to bring the Forner case here by cross-appeal. But the two actions are separate and distinct, and the fact that they were brought under one complaint and tried together does not mean that a dissent in the one case gives the defendant an appeal as of right in the other. R.R. 1:2-6 governing cross-appeals allows such an appeal only from a judgment properly here at the instance of an appellant therefrom. Frank v. Frank, 7 N.J. 225, 235 (1951). The railroad asserts no ground under R.R. 1:2 permitting an appeal of right from a judgment unanimously reached in the Appellate Division, and if such a ground were present the procedure would be by direct appeal from the judgment as to Forner, not by cross-appeal from the Pangborn judgment. The Forner case could not be brought here except by certification allowed under R.R. 1:10. However, the Forner plaintiffs have not objected and both cases raise substantially the same issues. We have therefore decided to treat the cross-appeal as a petition for certification and to grant certification.
The first question is whether the boys are to be deemed guilty of contributory negligence as a matter of law so that the railroad was entitled to judgments of dismissal on its motions made both at the close of plaintiffs' proofs and at the end of the case. The majority of the Appellate Division were of the view that the motions were well taken in the Pangborn case, but all three judges concurred that the matter of Forner's contributory negligence was for the jury. The judges in the majority distinguished the situations of
the two boys on the ground that Pangborn's contributory negligence was established from the fact that he was standing where he could be struck by the ordinary overhang of a properly constructed freight car, whereas the jury could find upon the evidence that Forner was outside the overhang limits, in which case it was for the jury to say whether Forner was at fault in standing where he might be hit by the body of the Pangborn boy.
We agree with the view of Judge Jayne, who dissented, that in the circumstances shown by this record the contributory negligence of both boys was a jury question. The boys were on the side of the station where ordinarily westbound trains rather than eastbound trains might be expected. This station is on the "main line," it "is a very busy crossing" and "many trains" are there. But Track 6 is not a main line through-track with trains running along it at regular intervals; it is merely an "unassigned direction" track terminating about a thousand feet back from where the boys stood. The witnesses for both sides agreed that such few westbound passenger trains as had their terminus at Dunellen would back out of the station to the yards after discharging their passengers. But the train here was not such a train and only the railroad's witnesses testified that Track 6 was also used at times each day when freight cars were shunted back and forth between the freight house and the freight yard. This was not the testimony of plaintiffs' witness, a police officer whose daytime beat for 17 years brought him in the vicinity of the crossing. He said he knew that Track 6 was "used for locals to come into Dunellen station and they back up and go back into the yard," but he made no mention of freight trains. Reuter's evidence was to like effect and, indeed, when asked why neither he nor his companions looked back of them as they walked on the platform toward the crossing and while they stood waiting for the passage of the fast freight on Track 2, he answered, "We wouldn't expect a train from the west."
But, conceding the fact to be that Track 6 was frequently, if irregularly, used to shunt freight cars, and assuming also
that a traveler should ordinarily be charged with knowledge that a railroad can and may run trains in either direction on a track, yet on the proofs here the jury could find that these boys honestly, if mistakenly, believed that no trains moved east on Track 6 except passenger locals backing out of the station, so that the danger from a drill engine moving cars east from the freight house was not obvious and apparent to them. The boys were in the habit on the way from school of taking the shortcut through the westbound station along the platform to the crossing. Thus, from the considerations that these boys were teenagers, held to a standard of care and caution exercised by others of similar age, judgment, experience and environment, and that they stood on the side of the station where trains regularly came from the east, in which direction they were looking as the fast westbound freight on Track 2 came from that quarter and passed behind them, and that they "wouldn't expect a train from the west," it is clear that reasonable minds might disagree as to the inferences derivable from their conduct, and in such case the jury and not the court must determine their fault. We have only recently reiterated the rule that "only in the clearest case of contributory fault, ...