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Phillips v. Erie Lackawanna Railroad Co.

Decided: December 11, 1969.

JOAN M. PHILLIPS, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DONALD M. PHILLIPS, DECEASED, AND JOAN M. PHILLIPS, INDIVIDUALLY, PLAINTIFF-RESPONDENT,
v.
ERIE LACKAWANNA RAILROAD COMPANY, ET AL., DEFENDANTS, AND NEW JERSEY AND NEW YORK RAILROAD COMPANY, DEFENDANT-APPELLANT



Conford, Collester and Kolovsky. The opinion of the court was delivered by Conford, P.J.A.D.

Conford

Defendant New Jersey and New York Railroad Company appeals from a judgment entered on a jury verdict in the amount of $200,000 in plaintiff's favor. This is a wrongful death action, and it arises out of a grade-crossing accident on July 13, 1966 wherein a train operated by employees of defendant collided with an automobile being driven by plaintiff's decedent at the Park View Drive crossing of the Erie Lackawanna tracks in Hillsdale.

There must be a reversal because of the erroneous admission in evidence, over defendant's objection, of the report of a hearing examiner of the Board of Public Utility Commissioners dated March 21, 1967, together with a confirmatory decision and order of the Board, based on evidence received at hearings duly conducted by the officer, wherein it was found that "visibility [was] obstructed' at the crossing, that two accidents had occurred at the location, and that there should be installed at the crossing automatic flashing lights and bells with appropriate warning signs.

Before stating the basis for that determination, we dispose of certain other grounds of appeal raised by defendant.

It is argued that contrary to plaintiff's representation during trial that there would be no contention of negligent operation of the train (but only of maintenance of an extra-hazardous crossing), there were allusions in plaintiff's summation to undue speed of the train and untruthfulness of the engineer's testimony. We think any potentially prejudicial result in this regard was obviated by the court's instructions to the jury.

Defendant contends there was insufficient evidence that the crossing was extra-hazardous to warrant submission of that issue to the jury. We have read the proofs in full and are constrained to disagree.

It is also asserted that there should have been an involuntary dismissal for failure on the part of plaintiff to establish causal relationship between any extra-hazardous condition of the crossing and the occurrence of the collision. The position is that the accident was exclusively the result of decedent's contributory negligence. Again, we disagree. The issue of causal relationship was one for jury resolution.

Finally, it is maintained that judgment should have been entered for defendant because the decedent was guilty of contributory negligence as a matter of law, and that, in any event, there was error in denial of the motion for a new trial. We think it was open to the jury not to find contributory negligence under all the concomitant circumstances, including the hot weather and decedent's use of the air conditioning in the car, requiring closing of the car windows. There was no error in the denial of the new trial insofar as based on matters other than introduction of the Public Utility proceedings in evidence.

We proceed to consideration of the latter issue.

The PUC report, decision and order proffered and received in evidence were obviously hearsay but were received in evidence, over objection, under the purported authority of Evidence Rule 63(15) ("Reports and findings of public

officials'), one of the exceptions to the hearsay rule, adopted June 6, 1967, effective September 11, 1967, a date prior to the trial of this action. This reads:

Subject to Rule 64, a statement is admissible if in the form of (a) a written statement of an act done, or an act, condition or event observed by a public official if it was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement, or (b) statistical findings made by such a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.

Evidence Rule 64 provides that a written statement admissible under Rule 63(15) may be excluded if fair notice of the intention to offer it was not afforded the ...


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