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Acken v. Campbell

Decided: June 24, 1975.

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



For affirmance -- Justices Mountain, Sullivan and Schreiber and Judge Conford. Dissenting in part -- Chief Justice Hughes and Justices Pashman and Clifford. Clifford, J. (dissenting in part). Hughes, C.J. and Pashman, J., join in this opinion.

Per Curiam

This appeal is taken on limited grant of certification, 67 N.J. 85, 68 N.J. 176 (1975), from a determination by the Appellate Division reversing a judgment for the plaintiff in a wrongful death action against the respondents railroad and water company and remanding the cause for a new trial. The factual background of the accident and the issues raised on the appeal to the Appellate Division are adequately recounted in the opinion of that court and need not be repeated here.

In brief, plaintiff's decedent was killed while driving his car across the railroad tracks at a private road near the water company's plant. Plaintiff claimed both defendants were guilty of willful and wanton negligence, the railroad in running trains over the crossing in violation of statutory and common-law duties of care for the safety of passersby, the crossing being asserted to be at a public road; and the water company in not warning the railroad of the carelessness of its trainmen and in permitting visitors and employees to park cars near the crossing in such a manner as to obstruct the vision of both passersby and trainmen.

The Appellate Division held there was no evidence in the case to permit the jury to find this to be a public road, and consequently the postulation of a statutory duty on the part of the railroad to take the safety measures dictated by the statutes, N.J.S.A. 48:12-54 to 58, in relation to public grade crossing, created prejudicial error requiring a reversal of the judgments. The court also held the trial court should have entered judgment for defendants on the counts for willful and wanton negligence, the evidence of negligence by neither defendant being sufficient to permit a reasonable finding of that degree of negligence.

Our grant of certification was as to plaintiff's claim against the water company only, and as to the following contentions of plaintiff only: (a) that the jury verdict of willful and wanton negligence of the water company necessarily subsumes a finding of at least ordinary negligence, and that at the retrial that issue should be taken to be concluded against the water company; and (b) that since the jury answered a special interrogatory as to the plaintiff's contributory negligence in the negative, that issue should also be taken to be concluded as against both defendants at the retrial.

We hold against plaintiff on both of these questions. Consideration of the record and the arguments satisfies us, in respect of the first contention, that the erroneous submission of the "public road" issue to the jury tainted the entire jury finding on negligence, and as to both defendants. Plaintiff does not argue that the intrusion of the concept of statutory responsibility for the safety precautions called for at a public road crossing, if erroneous, did not taint the entire verdict against the railroad company. Every consideration of logic and application of the proofs impels the same conclusion as to the water company. Since part of the plaintiff's case against the water company was the alleged failure of the latter to warn the railroad of its inadequate warnings to passersby of the train coming, any factor, like the special statutory precautions applicable at public grade crossings, which operated to elevate the railroad's duty of care, might well have been regarded by the jury as heightening the duty of the water company as well.

It would, moreover, be anomalous and unjust, as between the two defendants, the water company having cross-claimed against the railroad, to improve the possibility of the water company being held for negligence and the railroad ultimately not. The case for negligence against the water company is far weaker than that against the railroad.

Consequently, we find no merit in the first of the two points mentioned above.

We find equally lacking in merit the point as to the survival of the special verdict on contributory negligence. In the first place, the now adjudicated voiding of the verdicts of willful and wanton negligence and direction for a retrial of the issue of negligence as to both defendants, absent the clearest case of freedom from contributory negligence of the decedent, seems to argue for the good sense of a reappraisal of the negligence of all parties involved. Here there was quite a substantial case for the proposition that the decedent was contributorily negligent. The negligence issues are all closely intertwined.

Secondly, the negative finding by the jury on contributory negligence is suspect under all the circumstances. The trial judge had charged the jury that if they found willful and wanton negligence as to either defendant the issue of contributory negligence in relation to the claim against the defendant "would make no difference", contributory negligence of the decedent being no defense if the defendant were guilty of willful and wanton negligence. We are satisfied with the soundness of the contention of defendants that in view of those instructions there was a grave possibility that the jury, having concluded that both defendants were indeed guilty of willful and wanton negligence, regarded the special interrogatory on contributory negligence as not of significance and answered it routinely rather than with deliberation. The substantiality of that possibility, as well as the other considerations mentioned above, leads us to determine that the interests of justice call for a retrial of the issue of contributory negligence as well as of the other negligence issues.

Judgment affirmed.

CLIFFORD, J. (dissenting in part). While I concur in the determination that the plaintiff's case against the water company should be remanded to the trial court for disposition there (along with the claim against the railroad) of the negligence issue, I respectfully dissent from so much of the Court's opinion as requires relitigation of the contributory

negligence question. That issue was clearly and unmistakably resolved in favor of plaintiff and against defendants.

The trial judge in this case took special precautions to protect the integrity of the record. Inasmuch as this was a retrial, the first trial having resulted in a mistrial because the jury was unable to achieve agreement, all counsel had the text of the judge's first charge, which he delivered virtually unchanged. It was, as the record reveals, the subject of much informal discussion from the time the second trial started.

Among these discussions was one immediately preceding the summations and charge. This centered around the propriety of submitting to the jury the special interrogatory concerning decedent's contributory negligence. Perhaps at this point it would be well to set ...


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