For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
[36 NJ Page 457] This case arises out of a railroad grade-crossing collision. Plaintiff sued for personal injuries and property damage sustained when his automobile collided with a freight train operated by defendant Pennsylvania-Reading
Seashore Lines (Pennsylvania). The complaint charged Pennsylvania with negligence, and also named Socony Mobil Oil Co. (Socony) and its driver Raymond Parsons as co-defendants, charging that their negligence was also a cause of the accident. After the plaintiff put in his case, all the defendants moved for involuntary dismissal of the action. The trial court granted the motions of Socony and Parsons, but denied Pennsylvania's. At the end of the whole case Pennsylvania moved for a judgment of dismissal. The court granted the motion and plaintiff appealed as to all defendants. The Appellate Division sustained the trial court as to Socony and Parsons, but reversed as to Pennsylvania. We granted Pennsylvania's petition for certification. 36 N.J. 27 (1961). Since plaintiff does not cross-appeal the dismissal as to Socony and Parsons, the sole question before us is whether the evidence presented a jury question as to the liability of Pennsylvania.
Pennsylvania maintains a single track rail line which intersects Route 130 in the Township of Upper Penns Neck, Salem County, crossing the road at grade in a northeast to southwest direction. Route 130 is straight and level for a considerable distance in the area of the crossing, and runs in a north-south direction, forming an angle of 149 degrees at the point where it crosses the track. The highway is about 60 feet wide, consisting of two 10 foot concrete lanes in the center, one lane for northbound and the other for southbound traffic, with macadam shoulders each about 20 feet wide. A broken white line separates the two concrete lanes, but becomes solid 300 feet south of the crossing. There is also a railroad advance warning sign about 500 feet to the south.
The crossing is marked by two warning sign posts, one on each side of the 60 foot wide roadway. These signs are 14 feet high and contain crossbucks inscribed in reflector letters: "Railroad Crossing." Four back-to-back type red lights are mounted upon each post at a point about seven feet from the ground, two lights facing south and two
facing north. Immediately below the lights on each post is a rectangular reflector sign reading: "Stop On Red Signal." Each post also has a bell mounted at the top. The lights and bells operate automatically; when a locomotive reaches a point some distance prior to entering the crossing, it trips a switch which causes the bells to ring and the lights to flash alternately, thirty to forty times a minute, until the train has cleared the crossing. Because of the angle of the crossing the signal post on the northbound side is located 21 feet six inches north of the point at which the track crosses the center of the road, while the post on the west side is 23 feet two inches south of this point. Because of these locations, a northbound vehicle would not reach a point in line with the warning sign on its side of the road until after it had crossed the track.
At 1:00 P.M. on October 24, 1958, the plaintiff, a confectionery salesman, was driving his automobile in a northerly direction along Route 130 when he collided with or was struck by an engine pulling a Pennsylvania freight train through the crossing. He had driven through the area of the accident on many prior occasions, using it for business trips about twice each month. He was aware of a railroad crossing along the highway, but did not know its exact location. He was proceeding north on Route 130, a 50-mile an hour highway, at 30 to 35 miles an hour. The road was dry, the day sunny and clear, and he could see one mile ahead. According to him the traffic was heavy in both directions. About 250 feet before reaching the crossing, he drove his car slightly off to the right of the concrete highway to pass a pickup truck which was stopped to make a left-hand turn and he continued without diminishing his speed. Although he saw a Socony tractor-trailer stopped ahead on the macadam shoulder to his right, he said he thought nothing further about it since trucks often parked on shoulders of the road, and he noticed nothing to indicate that he was approaching a railroad crossing. However, according to plaintiff, when he reached a point at which
his car was parallel to the tractor-trailer, he noticed a southbound automobile stopped ahead in the southbound lane and heard a loud air horn. Sensing danger, but without seeing the tracks, he jammed on his brakes. After his automobile came to a stop he saw the train "was coming straight for me" from the right. He tried to back the vehicle away but it stalled and was struck in the left front by the oncoming locomotive. The car was spun around and finally came to rest 32 feet away in the southbound lane of the roadway.
The plaintiff testified he did not see the warning post with its blinkers on the east side of the road because it was blocked by the stopped tractor-trailer and he did not see the tracks proper because they were imbedded in the concrete. Two witnesses called by the plaintiff had an unobstructed view of the collision. The first, Socony's driver Parsons, said he was proceeding north and drove his tractor-trailer onto the macadam shoulder to stop at the rail crossing. Socony's vehicle is required by N.J.S.A. 39:4-128 to stop at all railroad crossings whether or not a train is approaching. Parsons stopped about 15 feet south of the track; the left side of his truck being a foot to 18 inches east of the concrete lane, and the right side "at least eight foot" from the edge of the shoulder. The tractor-trailer was 30 to 40 feet long and 8 to 10 feet high. Since the lights were not flashing, he followed his customary procedure and stopped on the shoulder instead of the concrete highway so he would not obstruct the flow of traffic. He testified that the lights on both sides of the road began to flash just after he stopped and that they continued to flash until after the collision. He heard the air horn of the locomotive, looked to his right and saw the approaching train. He testified that he first saw plaintiff's automobile in his rearview mirror when the plaintiff was about 400 feet south of the crossing. When he next observed plaintiff's automobile it was approaching the rear of the trailer at what appeared to be excessive speed if
plaintiff intended to stop for the train. He heard the screeching of brakes and then saw plaintiff's car slide past him and collide with the engine. He further said that southbound traffic was light, that the only vehicle in that lane was stopped, waiting for the train to pass. This automobile was the one plaintiff saw before the accident and belonged to the plaintiff's other eyewitness Simpson. He testified that the blinker on the west side was operating effectively and the air horn was sounded by the train, but he did not notice the blinker on the east side. Although he stopped his car close to the track, he had seen the lights flashing 200 to 300 feet away. He said the traffic in both lanes was light; there were no moving vehicles within 200 feet of plaintiff's car. It appeared to Simpson that plaintiff was approaching the track slowly "as though he were trying to see where the train was."
Pennsylvania's train was proceeding in a southwesterly direction at 25 to 30 miles an hour. According to the train personnel the engine's 44-pound bell began to ring and the air horn was sounded at a point about 600 yards before the crossing. These warning signals continued to sound intermittently up until the time of the accident. The engineer was sitting on the right side, and because of the length of the engine, his view of the left side (plaintiff's side) of the crossing was obstructed. However, he did see the blinker lights in operation on the right side or southbound lane side of the crossing. The first warning that he had of the accident was when the fireman who was seated on the left side of the engine told him to put on the brakes, "We hit a car." He brought the train to a stop 250 to 300 feet west of the crossing. The fireman confirmed the fact the bell and air horn were sounding. He saw the crossing warning lights flashing, but any early view of plaintiff's car which he might have had was blocked by billboards and the stopped tractor-trailer.
The railroad crossing was originally constructed in 1937 and the plans for the safety devices were approved by the
Board of Public Utility Commissioners. No additional safety devices had been installed since 1937. Although normal traffic on Route 130 was described as "heavy," the traffic load reached its peak prior to the opening of the New Jersey Turnpike and it is not now as heavy as it was then. Some physical and structural changes have altered the area of the roadway since 1937. Billboards 24 feet long and 20 feet high have been erected at both the northwest and southeast corners of the intersection, about 36 feet from the edge of the shoulders. An auto repair shop building is located near the southwest corner. A trailer camp and a building have also been erected in the vicinity south of the crossing, and vegetation has been permitted to grow wild along the railroad track. However, none of these block a motorist's view of the warning posts placed at the crossing. The only obstruction in the present case ...