On appeal from Superior Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Burling, J.
This case arises out of a railroad grade-crossing collision in which John J. Duffy, Jr., was killed. At the time of his death, Duffy was a passenger in an automobile driven by Daniel Bill, Jr. Plaintiff, administratrix ad prosequendum of the estate of the decedent, brought suit in the Superior Court, Law Division, to recover damages under N.J.S. 2 A:31-1 et seq. in her own behalf as decedent's wife and in behalf of decedent's two minor children. Defendants in this action were Daniel Bill, Jr., the Central Railroad of New Jersey (hereinafter referred to as the Railroad), and the Jersey Central Power and Light Company (hereinafter referred to as the Power Company). Defendant Bill filed a third-party complaint against the two corporate defendants. After a trial, the jury returned a verdict in favor of plaintiff and against the defendant Bill, but against plaintiff and in favor of the corporate defendants. On the third-party action, the jury found in favor of the defendants and against the third-party plaintiff, Bill. Bill did not appeal with regard to any phase of the matter below, nor did plaintiff appeal from the jury's verdict in favor of the Power Company. Plaintiff did prosecute an appeal, however, to the Superior Court, Appellate Division, from the verdict in favor of the Railroad. While the cause was pending there and prior to argument, we certified it on our own motion.
The crossing at which the collision in question occurred is located in Union Beach, New Jersey, in a built-up portion of that town. The railroad tracks, a single set, run east
and west. Florence Avenue crosses the tracks on an oblique angle, running northeast to southwest. The automobile involved in the collision in question was proceeding along Florence Avenue towards the north, and the train, a three-car passenger train drawn by a Diesel locomotive, was proceeding westward. To the south and east of the grade crossing there is an open field which extends 250 feet to the south along Florence Avenue and about 240 feet to the east along the railroad tracks, affording the traveler approaching the crossing from the south a clear view for these distances of trains approaching from the east. The tracks curve slightly along the entire portion between the Florence Avenue crossing and the next crossing to the east, presenting a concave appearance to a person facing the tracks from the south. At the southeast corner of the Florence Avenue crossing stands a cross-buck sign informing approaching travelers of the presence of the railroad tracks. Although no other warning device is located at the crossing, it is apparently admitted that this condition violates no statutory prescription or public-utility-commission regulation. North of the tracks and east of Florence Avenue are a parking lot and buildings owned by the Power Company. There is testimony that at nighttime the illumination of the parking lot shines directly at persons proceeding north on Florence Avenue and looking east down the railroad tracks but it is difficult to determine from the record, other than from the testimony of Bill, the extent to which these lights interfere with the vision, if at all.
The collision in question occurred at night, at about 9:30 P.M. The train, proceeding westward, was gaining speed and had reached about 40 miles per hour before its brakes were applied. There is ample proof from which the jury could determine that the train's horn was blowing at least during the time the train was within 900 feet of the crossing until the occurrence of the collision and that the locomotive carried a bright electric headlight which was operating. There was also testimony that the automobile which was
driven by the defendant and third-party plaintiff Bill approached the crossing "very fast" and although its brakes were applied in a desperate last-minute effort to avoid the accident, the car did not stop until after it collided with the train. Bill testified, however, that he approached the crossing carefully, stopped and attempted to discern whether a train was coming towards him, and seeing or hearing no train, proceeded across and was struck. Bill further testified that the parking-lot flood lights on the property of the Power Company prevented him, when stopped 15 feet from the tracks, from observing further than 100 feet to the east. He also stated that he had no warning of any kind of the approach of the train.
The fireman on the locomotive, who was seated on the side of that vehicle from which the automobile driven by Bill approached, testified that the bell was rung and the horn sounded from a point well before the Florence Avenue crossing. He stated that he first sighted the Bill car when the train was approximately 300 feet from the crossing, and that when it became apparent that the car would not stop, at which time the train was approximately 260 feet from the crossing, he applied the locomotive's emergency brakes. The engineer, who was on the far side of the locomotive from that from which Bill's car approached, testified that the bell and horn were sounded from a point well before the Florence Avenue crossing. The engineer stated that he could not see the car until it was hit because of the curve in the tracks, and that the emergency brakes were not applied until shortly before the collision took place.
Plaintiff contends that the trial court erred in the following respects: first, in failing to submit to the jury the question of whether the crossing in question was hazardous and hence required extra precautionary devices to be used by the Railroad in warning travelers of an approaching train; second, in failing to submit to the jury the question of whether the collision was caused by the negligent operation of the train; and third, in failing to allow certain expert
testimony sought to be introduced by plaintiff, apparently to be directed to the necessity of additional warning devices.
The plaintiff, in her brief, contends that the trial court erred in charging the jury in the following manner:
"If you find that the defendant, The Central Railroad Company of New Jersey, operated its train on which a bell was placed weighing not less than 30 pounds which was rung continuously in approaching Florence Avenue or sounded a whistle or horn at intervals beginning 300 yards from the crossing until the engine of the train reached the crossing, then you must find that the defendant committed no acts of negligence and return a verdict of No Cause of Action in favor of the defendant, The Central Railroad Company of New Jersey.
It is not your function and you must not consider the adequacy of the protection provided at the crossing in question. The statute I quoted above is the total duty required of the defendant, The Central Railroad Company of New Jersey. The railroad is not required to keep flagmen nor to give any other notice of the approach of their trains other than those signals mentioned above; and, as I stated to you, if you find that the railroad maintained a bell on the engine and rung it continuously, or sounded its horn, as I stated to you above, then you must find for the defendant, The Central Railroad Company of New Jersey.
It is the function of the Legislature, and not the function of this court or you members of the jury to determine the adequacy of the protection provided by the railroad company at this crossing."
Plaintiff argues that the above portion of the trial court's instructions to the jury constituted error in two respects: first, that, although the controlling cases in this State limit a railroad's duty of warning travelers on grade crossings of approaching trains, in the absence of an extraordinary danger created by the railroad itself, to the giving of the warning signals required by statute, these cases ought to be overruled, with the effect that any extraordinary hazard at a crossing would require that the railroad take extra precautions in warning of approaching trains, regardless of the source of its creation, and second, that the quoted portions of the charge prevented ...