Gaulkin, Lewis and Fulop. The opinion of the court was delivered by Lewis, J.A.D.
Mary Felici, plaintiff in a tort action, appeals from a judgment of the Superior Court, Law Division, dismissing her complaint at the close of her evidence on the issue of liability.
Defendant Pennsylvania-Reading Seashore Lines operates a passenger and freight railroad between Camden and Atlantic City, and a double line of its tracks pass through the Borough of Collingswood. Trains proceeding from Camden to seashore points on the westerly tracks are said to be traveling southbound, and northbound when proceeding in the opposite direction on the easterly tracks.
Plaintiff, age 42, lived in the Wayne Garden Apartments in Collingswood. The main entrance to the apartments is on
Browning Road, an improved east-west highway which crosses the railroad tracks. That crossing is protected by automatic gates, flasher lights and bells. The rear area of several apartment units extends from Browning Road north along the westerly railroad tracks to Wayne Terrace (West), a street which runs parallel to Browning Road and dead-ends near the bed of the railroad. On the easterly side of the railroad, paralleling and adjacent to its right-of-way, is a public highway known as Atlantic Avenue. Wayne Terrace (East), approximately 900 feet north of and parallel to Browning Road, dead-ends at Atlantic Avenue.
On June 16, 1961 the weather was clear and, at about 6:15 P.M., plaintiff, in returning home from her employment in Philadelphia, was discharged from a Public Service bus at Atlantic Avenue and Wayne Terrace. To reach her apartment on the other side of the tracks, she proceeded along a path to and up an embankment to the surface of the railroad bed which is approximately four or five feet above street level. When she reached a large log imbedded in the side of the incline plaintiff stopped, "took a foothold there" and looked both to the left and to the right without observing an oncoming train. She continued to the crest of the embankment and across the first (northbound) set of tracks. Her testimony was, "I concentrated on my footing and I didn't look up until I came to the separation between the two sets of tracks." Plaintiff was standing on the protruding end of a railroad tie of the easterly track when, for the first time, she noticed an approaching southbound train. Then, running forward, she cleared both rails of the westerly tracks before she was struck and thrown to the ground, apparently by a projecting portion of the engine.
The allegations in the complaint that the operators of defendant's train, after observing plaintiff's attempt to cross the tracks, did not "apply brakes" and "failed to ring a bell or blow a whistle or give proper warning" of the approaching train were supported only by plaintiff's testimony that she did not hear any such warning signals.
The diesel locomotive of the train was manned by a crew of two -- Robert L. Morris and his brother, David Morris. In substance, their testimony was that the speed of the train after crossing the Crescent Boulevard bridge (estimated to be 700 feet north of Wayne Terrace) was 60 to 70 miles per hour. When plaintiff was observed walking up the embankment to the railroad tracks toward the northbound rails, the fireman sounded the alarm whistle and continued to give short successive warning blasts.
It is contended on appeal that (1) the course of travel by plaintiff across the railroad tracks was on a right-of-way which had accrued to the public by prescription and, therefore, the evidence was sufficient to raise a jury question as to defendant's negligence, (2) R.S. 48:12-152, prohibiting recovery of damages resulting from certain types of trespass on railroad tracks, is here inapplicable and, in any event, defendant was guilty of wanton misconduct, and (3) plaintiff was not guilty of contributory negligence as a matter of law.
In the vicinity of the place where the accident occurred there is no kind of construction, grading or physical condition over or upon the railroad tracks to indicate any apparent or intended use as a public crossing. There is no evidence in the record of any dedicated right-of-way. Plaintiff and witnesses produced on her behalf testified that they frequently crossed the train tracks by way of a "short cut" from the Wayne Terrace apartment area to Atlantic Avenue and Wayne Terrace (on the opposite side of the railroad tracks), or vice versa , although there is no protected grade crossing at that location. There was testimony, however, concerning a footpath on each side of the tracks leading to the elevated bed ...