On certified appeals to the Appellate Division of the Superior Court from the Passaic County District Court.
For affirmance -- Justices Heher, Jacobs and Brennan. For affirmance as to railroad and reversal as to city -- Chief Justice Vanderbilt. For reversal in toto -- Justice Oliphant. The opinion of the court was delivered by Heher, J.
[22 NJ Page 86] These are actions in tort for "active wrongdoing" laid to the City of Garfield and for the allegedly concurring negligence of the New York, Susquehanna and Western Railroad Company, Inc. and D. Stamato and Company, Inc. in relation to the use of "the public way" known as Division Avenue, in Garfield, "adjacent to and over the tracks, right of way and grade crossing of the defendant" railroad, "thus bringing about a dangerous and unsafe condition in the public way," whereby the plaintiffs all suffered
personal injury and Latzoni property damage as well when, on November 23, 1952, Latzoni's automobile in which his co-plaintiffs were passengers "came in contact with a broken and uneven portion of the roadway and right of way."
The issues were tried to a jury; and there was a verdict for all three plaintiffs against the city and the railroad, who appeal asserting they were entitled to a directed judgment as a matter of law, and there was error also in the denial of their respective motions to that end, at the close of the plaintiffs' case and renewed at the close of the whole case. A like motion by Stamato at the conclusion of the plaintiffs' case was granted; and there is no appeal from the consequent judgment in its favor.
The appeals are here by certification on our own motion.
This is the situation of fact: The railroad line, running north and south, was established in 1865 on a 66-foot right of way. Division Avenue was dedicated in 1907. It was originally a dirt road extending east and west on both sides of the railroad right of way, "ending," it is said, on either side of the railroad, and there was thereafter "no crossing either constructed, permitted or used by motor vehicles," connecting the separated sections of the highway. The railroad says that Division Avenue, "as nearly as can be determined, did not exist until shortly prior to 1918, when for the first time it appears on certain evaluation maps which were prepared in conjunction with the Interstate Commerce Commission," then appearing "on both sides" of the railroad right of way, "but there is no indication on any official records that Division Avenue has been dedicated across the right of way of the railroad and in fact it never has been dedicated and is not now a crossing"; "the City has no claim to the railroad property lying between the extremities of Division Avenue; the City property stops at the right of way; Division Avenue had been only a dirt road until the improvement in 1952."
But developments preceding the mishap raise the question of a civil injury or wrong remediable by an action in tort for compensatory damages.
There was a gradual community growth until in 1952 Division Avenue had 20 buildings west of the railroad tracks and seven buildings to the east, comprising dwelling houses, apartment houses, a church and factories. Parallel to the tracks, 750 feet to the west, Ray Street intersects Division Avenue. For some time prior to 1952, the city maintained a "dead end sign" at this street intersection. The city says that "Notwithstanding the fact that Division Avenue was improved only to the extent of 'an oil coating,' it was a well lighted dead end street"; there was "an are light at the intersection of Division Avenue and Ray Street, 750 feet back from the railroad track, a 60 watt light 200 feet before the railroad track and another are light 100 feet beyond the railroad track"; "The dead end sign was placed with reference to the termination of Division Avenue at the railroad track," and "Another dead end sign was similarly erected on Division Avenue on the easterly side of the railroad track"; "The railroad track was actually 'a little used siding' of the railroad company, known as the Passaic Branch," and "The tracks are seven to eight inches above ground level."
Sometime in September 1951 the Mayor and Council of Garfield adopted a resolution authorizing the "improvement" of Division Avenue between Ray Street and Prospect Street, including a "crossing" of the railroad's right of way and the construction of "two new catch basins" along the easterly line of the right of way at Division Avenue, "connected to a storm drain presently in place along the easterly line of the right of way," and "two new catch basins and storm drains at the intersection of Division Avenue" and the "railroad right of way"; and the railroad was notified accordingly on September 26, 1951. Therein, the city made known its intention to apply forthwith to the Board of Public Utility Commissioners for appropriate action; and the railroad's "approval" and cooperation were solicited. The railroad concedes that negotiations were begun immediately to "settle certain differences as to whether the city or the
railroad would incur certain costs in the construction of the crossing." The city says that, unknown to it at the time, the railroad had leased to another land on the easterly side of its right of way. The railroad's contention at the trial was, "There cannot be a right of way across our property because it is leased to this coal company"; "* * * the public had no right of way to cross the property; it was our property; we leased it to a specific individual company for a particular purpose." But in a letter dated October 16, 1951, the railroad's general manager advised the city it would interpose no objection to a grade crossing if the city would assume all costs and expense of crossing construction, including track changes and sidewalks, automatic highway warning signals to be connected with track circuits. The city demurred to the demand for "automatic warning signals" at its expense; and another review of the matter was suggested. Renewed negotiations were fruitless; and the Utility Commission's formal approval of the plan to construct the crossing did not come until June 16, 1954. It was conditioned upon the installation of "Standard advance warnings and ...