Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
Plaintiff appeals from a judgment of dismissal entered by the trial court in its declaratory judgment action wherein it sought a "ruling that defendant should pay the cost of replacing or repairing" a footbridge over defendant's tracks.
In the late 1800's, when defendant's railroad was built, the land where the bridge is located was a farm owned by one Dod. Since the railroad bisected his farm, defendant, in partial consideration for the right of way, agreed to and did construct a timber vehicle bridge across the railroad tracks. In 1925 defendant wrote to plaintiff calling its attention to the fact that the bridge was in disrepair. It disavowed any obligation to maintain the bridge but stated its willingness to donate it to plaintiff if the latter would maintain it. Evidently plaintiff investigated and on December 28, 1926 entered into an agreement with defendant whereby defendant agreed to permit plaintiff to construct a pedestrian footbridge over the tracks meeting certain specifications. Plaintiff agreed to maintain the bridge and make any repairs. The presently important provision of the agreement is paragraph 6 (discussed infra) under which plaintiff released defendant from any liability for any damage done to the bridge by reason of any of the operations of the railroad.
It is not disputed that the bridge was damaged on June 10, 1964 as a result of being struck by one of defendant's freight cars that had become derailed. Plaintiff alleged that the derailment was caused by the fact that one of defendant's employees negligently left a siding switch open.
Plaintiff first contends that defendant is under a statutory obligation to provide and maintain the bridge. It relies upon R.S. 48:12-49, which provides in pertinent part:
"Every railroad company owning, leasing or controlling any right of way for a railroad within this state shall construct and keep in repair good and sufficient bridges and passages over, under and across the railroad or right of way where any road, street or avenue now or hereafter laid, shall cross the same, so that public travel on the road is not impeded thereby. Said bridges and passages shall be of such width and character as shall be suitable to the locality in which they are situated." (Emphasis added)
A review of plaintiff's map showing the street layout in the township discloses that on the south side of defendant's right of way at the specific location there is a street (either a spur of Hollywood Avenue or a continuation of Oakwood Avenue) which runs perpendicular to the right of way but does not continue across it. Moreover there is no street laid out on the north side of the tracks which crosses the right of way. On that side there are two lots (Nos. 322 and 323) which were deeded to plaintiff in 1926 as a part of the arrangements for building the bridge. Both the township clerk and the township engineer testified that to their knowledge there was no street laid out at this point. In the absence of proof that "any road, street or avenue * * * shall cross the [right of way]" the quoted statute does not apply. Therefore we conclude defendant was under no statutory duty to "keep [the bridge] in repair."
We consider next plaintiff's contention that the exculpatory clause (paragraph 6) of the agreement is invalid in that it is contrary to the public interest and public policy.
The pertinent portion of Paragraph 6 provides as follows:
"* * * the Township hereby releases the Railroad Company from any liability for any damage that may be done to said bridge and its appurtenances, or any of them, or delay or interference with the use of said bridge by reason of any operations of the Railroad Company or otherwise howsoever."
In Mayfair Fabrics v. Henley, 48 N.J. 483 (1967), the court, in upholding an exculpation clause contained in a ...