Conford, Freund and Labrecque. The opinion of the court was delivered by Labrecque, J.s.c. (temporarily assigned).
This case arises out of a railroad grade crossing collision in which plaintiff's decedent, Stephen Shutka, Jr., met his death. Plaintiff, mother of the decedent, as administratrix ad prosequendum of his estate, brought suit to recover damages under N.J.S. 2A:31-1 et seq. , in her own behalf and on behalf of the sister of the decedent. At the trial in the Law Division, Middlesex County, the jury rendered a verdict for the plaintiff in the sum of $60,000. A subsequent motion for a new trial or for judgment n.o.v. was denied by the trial court. Hence the present appeal.
Plaintiff's decedent was 27 years of age at the time of the accident. He was totally deaf and dumb and likewise suffered from defective vision. He was, however, the holder of a valid New Jersey license which required him to wear corrective glasses when operating an automobile. He was unmarried and lived with his widowed mother and his arthritic, deaf-mute sister on a farm owned by the mother which he operated.
The accident occurred at the Culver Road crossing of defendant's railroad, near the Town of Dayton, N.J., at approximately 7 P.M. on December 31, 1958. The weather conditions were dry and clear. It was dark and the automobile's headlights were on. Culver Road, upon which the decedent was proceeding, terminated a short distance from the accident. It was an ordinary black-top, 50-mile-an-hour road, running in a general north-south direction. In the immediate vicinity of the tracks the road was straight, but
it curved a short distance before the crossing. The single-track, electrified rail line of the defendant ran in a general east-west direction. The train involved was a single, electrified passenger coach, which had been proceeding in a westerly direction and approached the crossing from the decedent's right. Protection at the crossing was restricted to two of the usual crossbuck signs, one on each side of the right-of-way. The decedent was thoroughly familiar with the crossing from his continued residence on his mother's farm which was located on Culver Road not far away.
The only eyewitness to the accident was one Herbert W. Staer, the train's engineer. He testified that immediately prior to the collision the train had been proceeding towards the crossing at a speed of between 30 and 35 miles per hour, with its headlight operating on the bright beam and with the interior lights on in the coach. When he was a distance of approximately 1300 feet from the crossing, he put the train's automatic bell into operation and began blowing the whistle. Although he had observed the approaching headlights of the decedent's car sometime earlier, it was not until the train was some 75 to 100 feet from the crossing that he became aware that the automobile was not going to stop. He thereupon applied his emergency brakes but asserted that it was too late to avoid the collision.
After the impact the train's momentum carried it a distance of some 400 to 500 feet. When it finally stopped, Staer pushed the "down" button which caused the pantograph collector to retract, thus disconnecting the train from its overhead source of electric power. The lighting system of the train then became dependent for power upon the car's batteries.
Trooper William J. Maher, a member of the New Jersey State Police who was assigned to investigate the accident, testified that he observed the train headlight after the power had been restored and that "* * * it was not bright, it was not real bright." And further that "The light was very pinkish, dull * * * It wasn't even
throwing a beam down the track * * *." Trooper Maher testified that he and another member of the State Police conducted a search of the area of the accident in an endeavor to locate the glasses that Shutka was required by his conditional license to wear while driving. These were never located or accounted for. However, there was testimony that he was wearing glasses when he left home shortly before the accident, and that he always wore them. Trooper Maher also testified that there were automobile skid marks totalling 21 feet in length beginning before the crossing and terminating one foot the other side of the tracks.
A number of persons residing in the vicinity of the crossing, who were familiar with it and with the topography of the adjacent area, testified on behalf of the plaintiff. The collective import of their testimony was that the headlights of trains going over the crossing were dim and easily confused with the background street lights of the main street in the Town of Dayton. The testimony is conflicting as to the precise point at which a driver travelling in the same direction as the decedent would have a clear view of oncoming trains free from obstructing trees or underbrush. On the roadside to the right as decedent approached the crossing the investigating state policeman stated he found shrubs, bushes and weeds which ended approximately 20 feet before the crossing. Other testimony was to the effect that these ended some 99 feet from the tracks. According to another witness, the bushes and shrubs grew on top of a bank which was approximately three feet above the road surface. A number of witnesses familiar with the locality, testified that the shrubs and bushes obstructed the view of an approaching train. Trains were operated in both directions over the single track. Prior to reaching the crossing, a train proceeding westerly would cross the main street of the Town of Dayton (Old George's Road) at a point about half a mile before the crossing. There was testimony that, as it approached thereafter, the train lights would blend into the background of the street lights of the town.
The first question presented is whether the trial court erred in denying the defendant's motion for dismissal and its subsequent motion for judgment pursuant to R.R. 4:42-2(b) and R.R. 4:51-1, based upon the asserted contributory negligence of the decedent. The same ground was urged in support of a motion for a new trial and for judgment n.o.v. (R.R. 4:51-2), both of which were denied by the trial judge.
It is asserted that the evidence adduced at the trial conclusively established the decedent to have been contributorily negligent as a matter of law. In factual support of this contention defendant urges that Shutka could not hear; that he was permitted to drive only when using glasses; that the glasses were never located; that he knew of the presence of the crossing and failed to apply his brakes (as evidenced by the skid marks) until he was some 15 feet from the track, notwithstanding that he had a clear, unobstructed view from a point 156 feet from the crossing. In its argument upon this point, defendant relies upon Gifford v. Pennsylvania R. Co. , 119 N.J.L. 397 (E. & A. 1938); George Siegler Co. v. Norton , 8 N.J. 374 (1952); Pangborn v. Central Railroad Co. of N.J. , 18 N.J. 84 (1955), together with Swenson v. Chicago, M., St. P. & P.R. Co. , 336 Ill. App. 287, 83 N.E. 2 d 375 (App. Ct. 1949), and Faircloth v. Atlantic Coast Line Railroad Company , 247 N.C. 190, 100 S.E. 2 d 328 (Sup. Ct. 1957).
The question of the existence vel non of contributory negligence is ordinarily one for determination by a jury rather than by a court. Battaglia v. Norton , 16 N.J. 171, 179 (1954). Only in the clearest case of contributory fault when the contrary hypothesis is not fairly admissible does the question become one of law. Pangborn v. Central Railroad Co. of N.J., supra. Where different minds may reasonably come to different conclusions as to the facts, or may reasonably disagree as to the inferences derivable from the facts, whether controverted or not, the question is one for the jury. Mellon v. Pennsylvania-Reading Seashore Lines ,
7 N.J. 415 (1951); cf. Kaufman v. Pennsylvania Railroad Co. , 2 N.J. 318 (1949). While the reasonable man test is thus to be applied, as was pointed out in Battaglia, supra , care is to be taken that the reasonable man be not endowed with attributes which rightfully belong to a person of exceptional perspicuity and foresight.
The facts in the cases cited by the defendant in support of its motion, make them readily distinguishable. Thus in Gifford v. Pennsylvania R. Co., supra , Gifford was in full possession of his faculties and was operating his car over a private crossing. The surrounding territory was, in general terms, an open field, substantially level. There were no obstructions to the view in any direction except a few trees not yet in leaf; telephone poles; and some low banks of earth which looked as if designed to prevent golf balls from rolling on the track. The court went on to say that "* * * no one about to cross the track and looking for a train, as it would be his duty to do, could fail to see it in ample time to stop and avoid it, even though it was running at about sixty miles an hour." In that case the accident occurred during the daylight hours.
In George Siegler Co. v. Norton, supra , the accident likewise took place during daylight. In addition, in that case there were two sets of tracks separated by an open space of from 30 to 50 feet. The driver of the truck there involved, had passed over the first set of tracks and the intervening open space before being struck by the train on the second set of tracks. There was uncontroverted testimony that there was an unobstructed view of the tracks on which the train was running for a considerable distance, perhaps a little less than a half-mile, and that the 30 to 50 feet of land separating the two sets of tracks could easily have accommodated the truck had the driver chosen to stop. The court there held that the driver "* * * had he looked, could have seen the approaching train approximately half a mile away." (8 N.J. , at p. 384.)
Swenson v. Chicago, M., St. P. & P.R. Co., supra , was another daylight collision case in which the plaintiff admitted that he did not look in the direction of the approaching train until he was about 20 feet from the intersection, and even then did not stop his car but merely swerved to the right.
In Faircloth v. Atlantic Coast Line Railroad Company, supra , while the accident occurred at night, the road was straight for a distance of 615 feet approaching the railroad crossing. From a point 96 feet south of the crossing, an approaching train was visible for a distance of 2000 feet. The plaintiff's vehicle, after skidding some 35 feet, ran into the moving train at the crossing. The occupants of the car had all been talking prior to the accident.
The facts of the case sub judice differ from the facts in the cited authorities in a number of important respects. The accident occurred in the night time. The decedent was handicapped by his inability to hear and hence was relegated to the use of his eyes in avoiding danger. See Prosser, Torts (2 d ed. 1955), § 31, p. 126. The presence of the curve in close proximity to the track precluded an effective view of the train until that point was passed. Thereafter the testimony was to the effect that there were obstructions to vision. While the defendant's expert asserted that there was no obstruction from a distance of 162 feet from the track until the crossing was reached, this was disputed by the plaintiff, who produced testimony that obstructing shrubbery was cut down after the accident.
The plaintiff was entitled to a presumption that her decedent exercised due care under the circumstances. Danskin v. Pennsylvania R. Co. , 79 N.J.L. 526, 529 (E. & A. 1910); Bergmann v. Public Service Railway Co. , 98 N.J.L. 487 (E. & A. 1923); Bergquist v. Penterman , 46 N.J. Super. 74, 89 (App. Div. 1957). Contributory negligence was a matter of defense and she was not required to prove its absence as a part of her case. Danskin v. Pennsylvania R.R. Co., supra (79 N.J.L. , at p. 528).
No presumption of negligence arose from the mere happening of the accident. Ibid.
In addition to the obstructions to view, two other factors required consideration by the jury in determining whether the defense of contributory negligence had been established. The first of these was the character of the electric headlight on the train itself. While the defendant claimed that the electricity had been shut off after the accident by the lowering of the pantograph from the overhead wire, and that the headlight thereafter was actuated by battery power, yet, as noted above, the investigating State Trooper testified that after the electricity was restored, the headlight was "* * * not bright * * *. It was on the pinkish side." On cross-examination he stated that "The light was very pinkish, dull," and "It wasn't even throwing a beam down the track * * *." This was somewhat corroborated by another witness who had seen the train after the accident. The engineer affirmed that he had not changed the position of the headlight switch (which would vary the intensity of the headlight beam).
In addition, there was the testimony as to the effect of the background lighting furnished by the street lights in the town itself upon the lights of approaching trains. As the driver approaches the intersection he is facing this lighted background. One witness, Mollenhauer, testified that the locomotive headlight "blends right into it." Another witness, Birkenthal, testified that the lights of a train coming from the right and the background lights "look almost alike." Still another witness, Renk, said the background lights "confuse you with the street lights and train lights, especially if the train light is not bright. You don't know what you are seeing when a train is coming up there."
In the instant case, therefore, the jury was not necessarily relegated to a finding that the decedent did not have his glasses with him or that he made no observation until he was 15 feet from the track. It was equally open to the jury to find that he was wearing his glasses and ...