On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Fritz, Kole and Lane. The opinion of the court was delivered by Fritz, P.J.A.D. Lane, J.A.D. (dissenting).
Plaintiff was struck by a train owned by defendant Conrail and operated by that defendant through its engineer, defendant Dorrman. At the trial of his negligence action against these defendants the complaint against Conrail was dismissed at the end of plaintiff's case on the theory that the railroad was insulated from liability by N.J.S.A. 48:12-152. A jury found Dorrman not negligent. Plaintiff's motion for new trial was denied. Plaintiff appeals. Concerned over a congeries of trial events of questionable propriety, we are persuaded that respect for the interests of justice requires reversal. For reasons which shall appear, we lack conviction that those interests have been properly served. Put another way, we are satisfied that legal errors are manifest that might individually not be of such magnitude to require reversal but which, considered in their aggregate, have caused plaintiff to receive less than a fair trial. Biruk v. Wilson , 50 N.J. 253, 262-263 (1967); State v. Orecchio , 16 N.J. 125, 129 (1954); State v. Zwillman , 112 N.J. Super. 6, 22 (App.Div.1970), certif. den. 57 N.J. 603 (1971). Additionally, two more objective considerations provide justification for reversal: (1) a substantial, uncorrectable deficiency in the record and (2) our view respecting N.J.S.A. 48:12-152 which differs from that of the trial judge.
Despite some petty bickering at trial -- of which there was more than a little -- one fact is not in dispute. As plaintiff was scrambling to get off the tracks and back on to the platform of the Paterson station, he was struck by a train owned by Conrail and operated by Dorrman. There is hardly any more dispute about the basic or evidentiary facts if for no other reason than
that there is no one to contradict the reports of the respective parties. Of course, application of the law to the facts is that which produces the difficulty and, in large measure, the division of opinion here.
Plaintiff was on the train station platform, which extends for something more than 1,000 feet between the single eastbound and westbound tracks where they cross above Market Street in Paterson. He was waiting to board a train. The platform is only very slightly above the rails, a matter of inches. While thus occupied he lost consciousness. His next recollection is "being on my back and being taken away." He did not deny an awareness that white lines drawn on the platform parallel to the tracks and several feet from the edge of the platform and the adjacent track were designed to inhibit those waiting from nearing the platform edge. But the whole thrust of his undisputed testimony, and the theory of his cause of action, was that his being beyond those lines and on the track was not at all a matter of volition but unintended, involuntary and unforeseen. Plaintiff, born in 1948, had a history of epileptic seizures from the time he was eight years of age. The vast majority of these were of the petit mal variety and entirely manageable. On occasion, however, these were of the grand mal kind and resulted in loss of consciousness and, of course, loss of will. The last of these prior to the date of the accident in question occurred some several years before while he was on a train.
Plaintiff does not -- indeed, he could not -- deny that he was where he should not be: on the corporate defendant's railroad tracks. But he asks the factfinders to draw the readily available inference that this was because he suffered a debilitating grand mal seizure rendering him unconscious and producing a falling upon or rolling onto the track which not only was not volitional but was entirely beyond his control.
Defendants cannot refute these facts. Only one other person was on the platform at the time of the accident and she did not see plaintiff until she noticed him prostrate upon the tracks. From where this witness stood she thought the object on the track was inanimate. She did not look at it long, idly speculating,
"I just looked at it and wondered what was going to happen when the train came in, to see whether it was going to squash it or what was going to happen to it." This observation preceded the arrival of the train by ten minutes.
Without respect for the moment for the statutory defense asserted by the corporate defendant, we record that defendants' assertions of fact were designed simply to prove reasonable and customary care. In the course of this Dorrman conceded that he could see the station and platform at a distance of 600 to 900 feet from the station and that at about 300 feet from the platform he saw "what appeared to be a large cardboard sign or cardboard box," light brown in appearance. At that time the train was moving at about 30 miles an hour or 45 feet a second on a slight downhill grade. Nothing was then done to reduce the speed of the train, but the engineer "turned the bell on and I reached up and I gave one blast of the horn."*fn1 No claim is made by either Dorrman or his fireman who also testified that anything further was done respecting the operation of the train until the engine was within 50 to 30 feet of plaintiff's recumbent form. Then, at "approximately 30 feet," Dorrman blew the whistle. What happened next is graphically reported in the engineer's testimony on direct examination:
Q. Well, after you blew the whistle, what did you observe then?
A. Well, after I blew the whistle, I noticed a movement from this, what I thought was a cardboard or cardboard box. Then I looked down and I seen a head rise up. Then I realized it was a person on the track.
Q. Now, when you blew the whistle and you saw the movement, what did you do after that?
Dorrman had testified that he "maintained" his 30 mile an hour speed until the engine reached the nearest end of the Paterson station. The colloquy quoted above was speaking to events which happened after the train entered the station.
It is clear from the frank and consistent testimony of both Dorrman and his fireman that after the initial brief observation of the object on the track, which both thought to be a box, neither looked at it again until the whistle blew. By then, as Dorrman admitted, it was "[a]bsolutely impossible" to "stop that train before striking the body."
As noted above, we are troubled at the outset by a serious, irremediable procedural defect in the record before us. After the jury had been deliberating for about two hours it sent out two questions. As to one of these the following appears from the transcript:
THE COURT: . . . I am going to address myself to question two first.*fn2
It reads as follows: "In his testimony, did Mr. Eden state that he crossed the white safety lines? If so, how close to the track did he go?"
There was direct testimony by Mr. Eden and there was cross-examination of Mr. Eden. The reporter sitting closest to you took the direct. He has gone through his notes at my direction and he is going to read to you the pertinent question which relates to that and the response.
He will then be followed by the young lady sitting over here who took the cross-examination on Monday. I have gone through with her in my chambers, the pertinent section, as I believe it to be pertinent, of the transcript.
They will then read to you the questions and answers which would lead to the same general subject matter.
Mr. Senders, if you will turn and face the jury, please? If you will read to them what I have designated to be the appropriate questions and answers on this question number two.
(Whereupon, previous testimony read by court reporters.)
THE COURT: Ladies and gentlemen, I have had reread to you what I consider to be all of the testimony by Mr. Eden, direct and cross, with reference to the white lines and the crossing of the same.
By our leave, the attorney for plaintiff moved for summary disposition (R. 2:8-3(b)) on the basis of a certification which included the following:
6. After the jury retired they presented two questions to the judge as to which they sought answers. A photocopy of the actual questions submitted by the jury is attached hereto.
7. Without advising the attorneys for either plaintiff or defendant was [ sic ] to what its intentions were, the Court recalled the jury before it and instructed
two Superior Court reporters to reread various portions of the testimony in an attempt to provide the answers to these questions.
8. When I obtained the transcript of these proceedings which occurred on June 13, 1979, I noted at page 32 thereof the following paragraphic insert: "Whereupon, previous testimony read by court reporters". What, in fact, was actually read nowhere appears in the transcript.
9. I attempted to obtain copies of the court s in order to find out what actually was read and omitted from the transcript. The court reporter has advised that he has only been able to identify two specific questions and their answers even though much more was reread. I have also written to the trial judge in hopes that his notes would reflect the identification of these portions of the testimony which he caused to be read to the jury and which was omitted from the transcript. The judge's notes did not contain that information. I am attaching hereto a copy of a reply from the trial judge.
10. The two questions presented by the jury go to the heart of the case surrounding the negligence of both the plaintiff and the defendant. The procedure employed by the trial court, its reading of limited portions of testimony and its supplemental charge to the jury were objected to by both attorney for plaintiff and attorney for defendant. These objections and the procedures employed form a substantial basis for the appeal now pending before this court.
11. Without the essential testimony which was reread by the trial court, the appellate court, will have no way of knowing whether such conduct or rereading was prejudicial to the case of the plaintiff and no proper decision can be made without it. The omitted portions of the testimony reread are essential to the appeal presented by plaintiff.
In a responsive certification counsel for defendants asserted an "independent recollection of the testimony read to the jury." Neither the trial judge nor the reporters were that certain. By letter, the trial judge advised counsel for plaintiff on his post-judgment inquiry:
I have checked the file in the Clerk's office and my personal notes of the trial. Neither reflects precisely nor itemizes those portions of the testimony which I instructed the reporters to read back (reread) to the jury. I have no recollection of the precise portions of the transcript which were, in fact, reread. I assumed, as I always have, that this is a matter which is contained in the verbatim transcript of the record.
The reporters advised of their ability to "approximate the testimony" that was read but qualified even that with the following:
I would like to emphasize that this representation that we are making has been determined both from our recollections of the request that was made to us and any indications we might have on our stenographic notes. This is not meant to be a certification of the ...