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Acken v. Campbell

Decided: August 7, 1974.

HARRIET ACKEN, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT C. ACKEN, PLAINTIFF-RESPONDENT, CROSS-APPELLANT,
v.
JAMES ALLEN CAMPBELL, DEFENDANT, AND THE READING COMPANY, A PENNSYLVANIA CORPORATION, AND THE ELIZABETHTOWN WATER COMPANY, A NEW JERSEY CORPORATION, DEFENDANTS-APPELLANTS, CROSS-RESPONDENTS



Collester, Lynch and Michels. The opinion of the court was delivered by Michels, J.A.D.

Michels

[134 NJSuper Page 484] Plaintiff Harriet Acken, individually and as executrix of the estate of Robert C. Acken (decedent), instituted this action to recover damages for the wrongful death of decedent, her husband, as the result of an accident at a railroad crossing. The action was originally instituted against defendants The Reading Company (railroad) and its engineer James Allen Campbell. At the first pretrial

conference Campbell was eliminated as a defendant. The complaint was amended thereafter to join defendant Elizabethtown Water Company (water company).

Acken was employed by H.W. Alward Construction Co., an independent contractor, which was engaged in performing construction work on the premises of the water company at the time of the accident. On January 8, 1969, at about 8:45 A.M., Acken, with Robert Gifford, a co-employee, as a passenger drove his pick-up truck from the water company property in a northerly direction on a road known as Polhemus Lane intending to cross a certain railroad crossing located thereon. As Acken reached the crossing the pick-up truck was struck by a Reading train, and Acken was killed. The train's headlight was on and the bell ringing, although the horn was not being sounded. The engineer of the train did not see the pick-up truck until the moment of impact due to a white pick-up truck which was parked on railroad property near the track. The distance from the entrance of the water company property to the crossing was about 60 feet. Gifford, who testified, over objection, that Acken had the habit of coming to a stop to make observations on the several occasions he had driven with him over the crossing, also testified that at the time of the accident Acken was driving at about ten miles an hour, the heater was on, the windows were rolled up, and the two were engaged in light conversation. About three-quarters of a mile back from the crossing towards the plant, they stopped once to use the "inter-com" radio to call someone for equipment. The next thing Gifford remembered was getting hit by something and waking up under a train. He testified that he had no recollection of what transpired between the radio conversation and waking up after the accident.

The jury rendered a verdict in favor of plaintiff against the railroad and the water company in the amount of $170,000, and the trial judge added interest in the amount

of $25,962.25, pursuant to R. 4:42-11. The case was submitted to the jury with special interrogatories. The jury found both defendants guilty of willful and wanton negligence, and decedent not guilty of contributory negligence. The interrogatories submitted to the jury provided that if there was a finding of willful and wanton negligence, the jury was not to answer the interrogatories asking whether they found defendants guilty of negligence. With respect to the survival action, the jury found that Acken did not survive the accident and did not suffer conscious pain and suffering, and consequently did not award damages therefor. Defendants moved for a new trial, which motion was denied. They both appealed from the judgment entered against them and from the order denying their motions for a new trial. Plaintiff cross-appealed from the jury's refusal to award punitive damages.

The railroad contends at the outset that the trial court erred in submitting to the jury the issue of whether the crossing at Polhemus Lane was a public or private crossing, and in charging the jury as to certain statutory regulations applicable only to public crossings because there was no evidence that the crossing was other than private; and that the trial court should have so held as a matter of law.

The Legislature has established statutory regulations for the operation of railroad trains at grade crossings. N.J.S.A. 48:12-54 to 58. These statutes apply to grade crossings at public roads, and in pertinent part provide as follows:

N.J.S.A. 48:12-54:

Every company operating on a fixed track or tracks, freight or passenger trains or cars, shall provide protection to pedestrians and the traveling public at every crossing of its tracks by any public road. Such protection may be in the form of safety gates, flagmen, electric bell, electric signs or other recognized system of alarm or protection approved by the Board of Public Utility Commissioners.

N.J.S.A. 48:12-57:

Every railroad company shall place on each engine a bell weighing not less than 30 pounds which shall be rung continuously in approaching

a grade crossing of a highway, beginning at a distance of at least 300 yards from the crossing and continuing until the engine has crossed such highway, or a whistle or horn operated by steam, air or electricity, which shall be sounded, except in cities, at least 300 yards from the crossing and at intervals until the engine has crossed the highway.

N.J.S.A. 48:12-58:

Every railroad company shall install and maintain at each highway crossing at grade a conspicuous sign with such inscription and of such standard and design as shall be approved by the Board of Public Utility Commissioners, so as to be easily seen by travelers.

The railroad's operating Rule 14L provides that at public crossings engine whistles will be sounded, and operating Rule 14P provides that a succession of short sounds of the locomotive whistle or horn be used as an alarm for persons or livestock on the tracks. The trial judge charged, in substance, the aforementioned statutory regulations and railroad operating rules, instructing the jury in part:

If you find that the Polhemus Lane crossing was private at the time of the accident, then the prescribed protective measures were not required by statute.

Our study of chapter 12 of Title 14 fails to reveal the existence of a statutory definition of "public road" or "highway." Chapter 15 of Title 48, however, provides:

The word "street" when used in this chapter means and includes a public street, avenue, highway, road, alley, lane, plaza, square or other public place. [ N.J.S.A. 48:15-1; emphasis supplied]

It has been held under the Traction Act of 1893, the predecessor of the above statutory section, that a street laid out by an owner upon his own land and dedicated by him to the public was not a street or a highway within this section in the absence of acceptance by the public authorities, where they assumed no care for the street despite occasional use for passage by pedestrians or vehicles. Pease v. Traction Co., 69 N.J.L. ...


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