For reversal and remandment -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain, and Judges Conford and Sullivan. For affirmance -- None. The opinion of the Court was delivered by Sullivan, P.J.A.D., Temporarily Assigned.
In separate actions brought under the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C.A. § 51, et seq., plaintiffs Herbert Huber and Stanley Wicks, the fireman and engineer respectively on a Central Railroad of New Jersey train, sought damages against their employer for injuries received in a derailment accident.
At the jury trial of the consolidated cases, after both sides had rested their presentation of evidence, the trial judge granted defendant's motion for judgment, R. 4:40-1,
on the ground that a jury issue as to defendant's negligence had not been proved. The Appellate Division affirmed in an unreported opinion. This Court granted plaintiffs' petition for certification. 60 N.J. 288 (1972).
The accident happened shortly after midnight on October 17, 1966 during a train run from Bridgeton, N.J. to Jersey City. The train, consisting of two diesel-electric engines and 24 cars loaded with sand, had reached the vicinity of Chatsworth, Woodland Township, Burlington County. This portion of the route was over a single track line through a wooded section with bushes and small trees growing close to the track. Permissible train speed in this area was 40 m.p.h. At this point there was a railroad siding into Betz Laboratory curving sharply to the left from the main track. Access to the siding was had by means of a switch located in the main track. The switch lever was secured by a lock which prevented it from being operated unless the lock was removed. The mechanism also included a low pointer target over the switchstand which indicated whether the switch was open or closed. The switch had been locked in a closed position leaving the main track clear for passage. However, some 36 hours prior to the accident four boys had pried the lock open, thrown the switch so that a train would run into the siding, and then replaced the lock.
Huber and Wick had been over the route on prior occasions and were aware of the siding and the switch. Huber, as fireman, sat on the left side of the engine. His duties included observing conditions ahead, including signals and switches, which he was to call to the engineer's attention. Huber testified that there was no indicator or target on this particular switch. (Photographs of the switch marked in evidence on defendant's case show that actually there was a low pointer or target over the switch stand.)
Wick also testified that there was no target on the switch and that he was unable to see the lever for the switch because the switchstand was down in the bushes. He had reported
to his superiors that "the switch wasn't visible. No target on it," and that it was a dangerous condition.
Both Huber and Wick testified that as they approached the siding on the night in question, with the headlight of the engine shining down the track, they were unable to tell by looking at the track whether the switch was open or closed. On cross-examination Huber was confronted with his deposition that when "we were just about on it, you know, say, approximately four car-lengths or five car-lengths when you could see it was wrong." However, he attributed his deposition to possible misunderstanding on his part and insisted that he could not see the position of the switch prior to the accident.
It appears to be undisputed that the train travelling at about 35 m.p.h. as it passed through the switch, was shunted sharply to the left onto the siding causing the engine to derail and fall over on its side.
The trial court found no evidence of negligence on the part of defendant railroad, and in particular no proof that in the operation of its facilities defendant had violated any established rule or standard of care. It held that the accident was caused solely ...