For affirmance -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Proctor, J.
The plaintiffs appealed to the Appellate Division of the Superior Court from a summary judgment which the Law Division had entered in favor of the defendant railroad company. We granted certification under R.R. 1:10-1(a).
Catherine Egan, seven years of age, sued the Erie Railroad Company to recover damages arising from an accident in which she was struck by a freight car of the defendant. Her parents sued for consequential damages. The pleadings and the pretrial order disclose that at about noontime on November 8, 1955 the infant plaintiff attempted to board a moving freight train operated by the defendant, Erie Railroad Company, and was severely injured when she slipped and fell under the wheels of one of the cars. She resided with her parents in a housing project owned by the Housing Authority of the City of Hoboken. The housing project is separated from the defendant's railroad tracks by a narrow strip of vacant and unimproved land, varying from 10 to 40 feet wide, owned by the City of Jersey City. The Housing Authority erected a wire fence six feet high between its property and the aforesaid strip of land. This fence extends 1600 feet, which is the complete length of the property of the project. Both the Housing Authority of the City of Hoboken (together with the City of Hoboken) and the City of Jersey City are defendants in the action but are not parties to this appeal.
The infant plaintiff obtained access to the railroad tracks by climbing over the wire fence. The train involved in the accident consisted of 53 cars with the caboose immediately behind the engine pulling the train. All members of the crew of five were riding in the engine or the caboose and none of them observed the infant plaintiff prior to the accident. The employees of the defendant company had prior knowledge that children were accustomed to playing upon the tracks in the vicinity of the accident and had on occasions chased them.
The case was pretried on March 13, 1958. The pretrial order, after stating plaintiffs' contention that the defendant was negligent in failing to take the necessary safety measures to prevent children from coming on the tracks, contained the following allegations which had not been set forth in the amended complaint: "The deft wantonly caused injury to the infant plf upon its said property when it had actual notice of the infant being present upon its property at the time of said occurrence"; "The deft wantonly omitted to take necessary precaution to provide watchmen on its said property after having previous knowledge that children were accustomed to playing thereon."
Thereafter, the defendant railroad company moved for summary judgment on the ground that N.J.S.A. 48:12-152 barred the plaintiffs' action. The trial court held that the statute was applicable and directed that final judgment be entered in favor of the defendant railroad company.
N.J.S.A. 48:12-152 provides:
"It shall not be lawful for any person other than those connected with or employed upon the railroad to walk along the tracks of any railroad except when the same shall be laid upon a public highway.
Any person injured by an engine or car while walking, standing or playing on a railroad or by jumping on or off a car while in motion shall be deemed to have contributed to the injury sustained and shall not recover therefor any damages from the company owning or operating the railroad. This section shall not apply to the crossing of a railroad by a person at any lawful public or private crossing."
This statute had its origin in 1869. L. 1869, c. 285, p. 806. It was enacted in virtually the above language as part of
the General Railroad Law in 1903, L. 1903, c. 257, § 55, and re-enacted in its present form in the general revision of ...