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Potter v. Finch

Decided: June 7, 1978.

STEPHEN GARDINE POTTER A/K/A STEVEN POTTER A/K/A STEVEN GARDINE A/K/A STEPHEN GARDINE, AN INFANT BY HIS GUARDIAN AD LITEM, VALDERINE OLIVIA POTTER AND VALDERINE OLIVIA POTTER, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
CHARLES V. FINCH & SONS, A CORPORATION OF NEW JERSEY, CLARENCE FINCH, SR. AND CLARENCE FINCH, JR., INDIVIDUALLY AND TRADING AS CLARENCE V. FINCH & SONS AND/OR CHARLES V. FINCH & SONS, MONGIELLO BROS. FUEL OIL & COAL, INC., 100 GARFIELD CORP., DEFENDANTS, AND RICHARD HEGIE, ROBERT CHAPTON, JOE GUGLIUCCI, J. CARROLL AND T. D. TIMPANY, TRUSTEE IN BANKRUPTCY OF CENTRAL RAILROAD OF NEW JERSEY, JOINTLY, SEVERALLY OR IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



On certification to the Superior Court, Appellate Division.

For affirmance as to defendant railroad and reversal and remandment as to defendant employees -- Chief Justice Hughes, Justices Sullivan, Clifford, Schreiber and Handler and Judge Conford. For reversal as to defendant railroad and reversal and remandment as to defendant employees -- Justice Pashman. Pashman, J., dissenting.

Per Curiam

[76 NJ Page 500] This case involves the issue of the liability of defendant-railroad and the members of one of its train crews for an accident to an eleven year-old boy. On December 5, 1972, the boy, while walking on defendant's railroad tracks, was struck by a train and severely injured. Suit was filed by the boy's mother individually and as guardian ad litem for the boy, against the railroad and the members of the crew of the train which struck him.*fn1

Motions for summary judgment were filed on behalf of the railroad and its employees, relying on N.J.S.A. 48:12-152 which, inter alia, provides that any person injured by an engine or car while walking, standing or playing on a railroad shall be deemed to have contributed to the injury sustained and shall not recover therefor any damages from the company owning or operating the railroad.

The trial court found the statute controlling and granted summary judgment in favor of the railroad. However, it also ruled that the statutory bar against recovery of damages did not extend to suits against employees of a railroad. Accordingly, it denied their motion for summary judgment.

Counsel for the employees moved for a rehearing of their motion and submitted to the court an unreported opinion of the Appellate Division which had held that the statute controlled with regard to suits against railroad employees as well as the railroad. Based on the foregoing, the trial court then ruled that the suit against the members of the train crew was also barred by N.J.S.A. 48:12-152 and entered summary judgment in their favor. Plaintiffs appealed, challenging the aforesaid rulings. The Appellate Division in an unreported opinion affirmed. This Court granted certification. 75 N.J. 18 (1977). We reverse in part.

The statute in question, N.J.S.A. 48:12-152, provides as follows:

It shall not be lawful for any person other than those connected with or employed upon the railroad to walk along the tracks of any railroad except when the same shall be laid upon a public highway.

Any person injured by an engine or car while walking, standing or playing on a railroad or by jumping on or off a car while in motion shall be deemed to have contributed to the injury sustained and shall not recover therefor any damages from the company owning or operating the railroad. This section shall not apply to the

crossing of a railroad by a person at any lawful public or private crossing.

It has uniformly been held that the statute operates as an absolute bar to recovery of damages for injuries unless willful or wanton conduct is shown.*fn2 Erie R. Co. v. Duplak, 286 U.S. 440, 52 S. Ct. 610, 76 L. Ed. 1214 (1932); Erie R. Co. v. Hilt, 247 U.S. 97, 38 S. Ct. 435, 62 L. Ed. 1003 (1918); Egan v. Erie R. Co., 29 N.J. 243 (1952); Hess v. Atlantic City Railroad Co., 95 N.J.L. 494 (E. & A. 1921). The statutory bar extends to infant trespassers as well as to adults. Egan, supra, 29 N.J. at 248-250.

When the statute was enacted, the policy of the common law of New Jersey was that a landowner owed no duty of care to a trespasser other than to refrain from causing injury to such person by wilful and wanton conduct. The statute adopted this policy in an unqualified form in relation to railroads. Egan, supra, 29 N.J. at 250-251.

However, immunity from tort liability is not favored in the law since it bars the injured person from the recovery of compensatory damages against the party who is otherwise responsible for the injury. Immer v. Risko, 56 N.J. 482, 495 (1970); Willis, et al. v. Dept. of Cons. & Ec. Dev., 55 N.J. 534, 537-539 (1970); Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 47-48 (1958). For that reason, statutes such as N.J.S.A. 48:12-152 must be strictly construed and not extended beyond their plain meaning.

The bar against recovery contained in N.J.S.A. 48:12-152 by its terms extends to "the company owning or operating the railroad." The Legislature did not expressly include employees of the railroad and we do not find in the statute an indication that this was intended.

It is one thing to relieve a railroad from liability to trespassers because of its vital function as an instrument of transportation and commerce, the enormous territory it necessarily encompasses and the practical impossibility of guarding against trespassing. Egan, supra, 29 N.J. at 253. However, this rationale does not extend to relieving a ...


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