On certification to the Superior Court, Law Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. For Affirmance -- None. The opinion of the Court was delivered by Handler, J. Schreiber, J., concurring. Justice Pashman joins in this opinion. Pashman and Schreiber, JJ., concurring in the result.
In this case the plaintiff, Frederick Renz, Jr., then age 15, and four companions were walking along Penn Central Railroad tracks, on April 4, 1975, when Renz attempted to cross between the cars of a stationary train by climbing over the coupling. The train moved as Renz was engaged in this activity and he fell beneath the wheels of the train resulting ultimately in the loss of one leg and a fracture of the other.
Plaintiff by his guardian ad litem instituted an action to recover damages for negligence from the railroad and some of its employees. The railroad raised the railroad immunity act, N.J.S.A. 48:12-152, as a defense. Plaintiffs moved to strike this defense on the theory that the Comparative Negligence Act, N.J.S.A. 2A:15-5.1, -5.2, either superseded or modified the railroad immunity act so that comparative fault principles were now applicable in cases like this.
In the Law Division, the plaintiffs' motion was denied. The trial judge reasoned that the railroad immunity act completely exonerates a railroad from liability by absolving it of any duty to trespassers. Because "[n]egligence depends upon an antecedent duty," the court reasoned, contributory negligence, and therefore comparative negligence, could play no part in any action against a railroad.
Following the denial of the motion to strike, plaintiffs moved successfully for leave to appeal the interlocutory determination. This Court then granted direct certification.
This appeal, as well as the companion case of Eden v. Conrail, 87 N.J. 467 (1981), decided today, raise the same important question of whether the railroad immunity act, N.J.S.A. 48:12-152, which bars recovery against a railroad for injuries sustained by unauthorized persons engaged in particular activities on railroad property, continues to insulate a railroad from tort liability in light of fundamental changes in our law involving the doctrines of contributory and comparative negligence. In a recent case, Potter v. Finch & Sons, 76 N.J. 499 (1978), this issue was raised but was not considered because the accident there occurred prior to current statutory changes in our tort laws relating to these doctrines. The consideration and resolution of this issue in this case, however, is timely and cannot be avoided.
The railroad immunity act provides:
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. (emphasis added)
The statute was first substantively enacted in 1869, L. 1869, c. 285. At that time, the enactment consisted only of the second and third sentences of the statute as it now appears. The first sentence was added in 1903, L. 1903, c. 257, § 55, and except for minor grammatical changes the statute has remained intact since that date.
We note at the outset in construing this enactment that statutory language should be given its ordinary meaning absent specific intent to the contrary. Levin v. Township of Parsippany-Troy Hills, 82 N.J. 174, 182 (1980); Abbotts Dairies v. Armstrong, 14 N.J. 319, 325 (1954). Thus, we must first look at the evident wording of the statute to ascertain its plain meaning and intent.
The statute by its unambiguous language provides that any person hurt as a result of walking, standing or playing on or along a railroad or its tracks or jumping on or off a moving railroad car is guilty of contributory negligence. Such a person is deemed to have "contributed to the injury sustained" and the railroad shall not be liable to such person for any personal injuries attributable to that conduct. The clear purport of this language and the gist of its intended meaning is that certain conduct constitutes contributory negligence.
In terms of the applicability of this statute and its viability today, it is important to understand this central theme. That this is the clear meaning of the statute is illuminated by historical reference to the sequential passage of the present law. The statute, as noted, was first enacted in 1869. At that time it referred solely to conduct contributing to injury -- contributory negligence -- and to the liability of a railroad with respect to certain persons engaged in such conduct. The statute as a matter of law equated certain conduct with contributory negligence which it posited as an absolute affirmative defense barring recovery against a railroad. The statute made no reference to the status of persons covered by its terms and did not explicitly refer to the duty of care owed by a railroad as a landowner or common carrier, nor did it make any reference to trespass or similar doctrines involving landowner duties to persons upon its property.
The later addition of the first sentence of the present statute did not, in any sense, change the essential terms, meaning or import of the statutory immunity. Rather it explicitly made walking along railroad tracks unlawful, clearly intending that this activity is encompassed within the liability provisions of the statute, as well as providing the railroad with additional sanctions against a person engaged in such conduct. See, e.g., Potter v. Finch & Sons, supra, (statute applied to an eleven-year-old boy walking on defendant's railroad tracks). Cf. Furey v. N.Y.C. & H.R.R.R. Co., 67 N.J.L. 270 (E. & A. 1902) (1869 statute, just prior to the 1903 addition, did not apply to a person
walking across railroad tracks, rather than on them, at a place other than a public crossing). Thus the statute by its straightforward terms provides that persons falling within its scope may not recover damages from a railroad because of the incorporated common law theory of contributory negligence.
The major obstacle to this construction of the railroad immunity act is the judicial interpretation of that statute in Egan v. Erie R. Co., 29 N.J. 243 (1959). That Court perceived the provisions of the railroad immunity statute as hinged upon the common law theory of trespass, in effect absolving the railroad of a duty of care to persons engaged in the activities enumerated in the statute. In applying the statute under this interpretation to the facts before it, the Egan Court examined New Jersey's common law doctrine of trespass "at the time of the adoption of the statute and for many years thereafter." 29 N.J. at 250. The Court, however, focused upon New Jersey jurisprudence in this area as of 1903, the date that the statute was first enacted as a whole. It concluded that under the law of this State, as then codified in the statutory enactment, "a landowner owed no duty to a trespasser other than to refrain from inflicting injury upon him through willful and wanton conduct." Id. at 250-251.
Having determined that the statutory enactment codified the common law rule "providing immunity from liability" to a trespasser, id. at 251, the Court then reviewed the evolution of common law trespass principles, which had led in more recent times to a "more flexible doctrine," id. at 252-253. It concluded, nonetheless, that the Legislature did not intend that the trespass doctrine, as incorporated in the statute in 1903, be altered or modified so as to be fully coincident with what it viewed to be the relevant decisional law at the time of its decision.*fn1
In view of this analysis by the Egan court, then, we cannot conclude with sureness that the legal theory underpinning the statutory enactment was one of contributory negligence rather than trespass based solely upon what appears to be the clear import of the language of the statute. However, because the correct legal theory of the statute is crucial to our analysis of its terms at this time, we must look further to ascertain whether the legislative intent indeed indicates that the clear words of the statute that bespeak contributory negligence are to be disregarded and that trespass is to be deemed the underlying legal theory of the immunity act. In doing so, we agree with the general methodology of the Egan Court that such an inquiry must commence with an evaluation of "the common law of New Jersey . . . [a]t the time of the adoption of the statute." 29 N.J. at 250. However, in our view, that means a journey back to 1869 and before, since the operative liability provision of the statute was enacted substantially in its current form at that date rather than 1903 when the additional element was added. Thus, the question to be answered is whether the Legislature intended its enactment to negate the railroad's duty to individuals within its scope based upon the doctrine of trespass, as Egan viewed the statute, despite the fact that the Legislature chose to frame the statute in terms of contributory negligence and fault.
A century ago, the jurisprudential basis for the principle that no liability attached to a landowner when a person was injured while improperly on his land was not clearly or firmly
settled. At that time non-liability was based upon either lack of duty (the trespass doctrine) or the fault of the injured (a contributory negligence notion). Thus, some cases denying recovery to trespassers talked in terms of a lack of duty to the trespasser; others spoke in terms of the contributory fault of the trespasser.
Many early cases, for example, allowed the question of the liability of landowners to trespassing children to be sent to the jury because they viewed an act of trespass as being potentially or indirectly indicative of negligence. E.g., Sioux City & Pacific R.R. Co. v. Stout, 84 U.S. (17 Wall) 657, 660, 21 L. Ed. 745, 748 (1874) (discussing "plaintiff's negligence, whether made in a direct form, or indirectly under the allegation that the plaintiff was a trespasser"); Daley v. Norwich and Worcester R.R. Co., 26 Conn. 591, 598 (1858) (trespass did not excuse the defendants from being culpable for their negligence unless the trespasser had contributed to the injury); Birge v. Gardiner, 19 Conn. 507, 512 (1849) (stating that some acts of trespass involve no fault and that "negligence of the defendant is here the cause of action; and he alone is responsible for the entire consequences of it, unless there has been fault on the plaintiff's part"); Whirley v. Whiteman, 38 Tenn. 610, 623-624 (1858) ("defendants were guilty of negligence . . . and . . . the supposed wrongful act of plaintiff himself, in trespassing upon the defendant's property, can [not] excuse them from liability"). These cases focused upon the fault of the plaintiff, i.e., a child not knowing enough to be guilty of negligence, rather than any alleged blamelessness of the defendant based upon the theory that the landowner was not possessed of a duty to the plaintiff. Other cases, however, looked at non-liability to an injured trespasser in terms of a lack of duty. E.g., Vanderbeck v. Hendry, 34 N.J.L. 467, 472 (Sup. Ct. 1871) (question of the plaintiff's negligence was improperly submitted to the jury in that permission granted to traverse the plaintiff's land "creates no duty"); Morgan v. City of Hallowell, 57 Me. 375, 377 (1869) ("the consequences of an accident [remain] . . . where they belong, upon him who has
wandered out of the way, though he may have been guilty of no negligence in the ordinary acceptation of the term"); Sweeny v. Old Colony and Newport Railroad Company, 92 Mass. 368, 372 (1865) ("[t]he owner of the land is not bound to protect or provide safeguards for wrongdoers.").
As of 1869 and thereabouts, then, when the railroad immunity statute was initially passed, courts employed two approaches to deny liability to trespassers -- one focusing on the presence or absence of a duty on the part of the landowner, and one emphasizing the fault of the victim. In essence, the law had not yet gelled in terms of a single or preferred rationale that would generally govern such cases. See generally Marsh, The History and Comparative Law of Invitees, Licensees and Trespassers, 69 Law.Q. 182 (1953). It must be assumed that the Legislature, in drafting the initial statute, was aware of these differing approaches. Thus, we perceive that the choice of language employed by the Legislature was no accident. If the Legislature, in enacting the railroad immunity statute, had wanted to adopt an approach focusing upon the presence or absence of landowner duty, and to codify a rule of no duty to trespassers, it could very well have done so simply by relating the statute to the status of the plaintiff vis-a-vis the property of the railroad. Instead, it clearly chose to focus upon plaintiff's action or conduct, employing fault-based language, indicative of principles of negligence, and specifically referring to the doctrine of contributory fault. This is of especial significance because, at this time, the courts of this State had already adopted the doctrine of contributory negligence and had applied it specifically in the context of railroad accidents. New Jersey Express Co. v. Nichols, 33 N.J.L. 434 (E. & A. 1867); New Jersey Railroad and Transportation Co. v. West, 33 N.J.L. 430 (E. & A. 1867); Central Railroad Co. v. Moore, 24 N.J.L. 824 (E. & A. 1854).
Examination of the historical context of the railroad immunity statute, then, discloses no evidence that would warrant the conclusion that the plain wording of this legislation should be ignored. Hence, we conclude that an examination of this background
and a forthright construction of the statute leads to an interpretation of the law that differs in part from Egan. While we can agree that the Legislature in clearly stating that individuals "shall be deemed to have contributed to the injury sustained and shall not recover therefor any damages" meant to adopt a relevant, judicially-developed common law doctrine as a predicate for non-liability, we believe it meant to embrace the common law doctrine of contributory negligence, not trespass.
Although the judicial discourse about the legal basis or theory of railroad immunity since that time has not been consistent, the earliest decisions involving the railroad immunity statute support this reading and construction of the statute as based upon contributory negligence. It is reasonably clear that the liability of the railroad was understood to turn upon the quality of conduct engaged in by the plaintiff -- not his status as a trespasser -- and the affixing of the bar of contributory negligence based upon that conduct. Powell v. Erie Railroad Co., 70 N.J.L. 290 (E. & A. 1904); Diebold v. Pennsylvania R.R. Co., 50 N.J.L 478 (S. Ct. 1888). In Powell, a case where a trespasser attempting to jump on a moving train to catch a free ride was injured, the court, after deciding the case on common law grounds, stated:
If a statute were needed as support for the proposition that a person injured while jumping on or off a train in motion is guilty of contributory negligence, such an enactment is to be found in Pamph. L. 1869, p. 806. [70 N.J.L at 293.]
This early interpretation was followed by many subsequent cases which clearly viewed the statute in terms of contributory negligence. Zelman v. Pennsylvania Railroad Co., 93 N.J.L. 57 (Sup. Ct. 1919), aff'd 94 N.J.L. 283 (E. & A. 1920); Kowaleski v. Pennsylvania R. Co., 103 F.2d 827 (3 Cir. 1939), cert. den. 308 U.S. 556, 60 S. Ct. 95, 84 L. Ed. 467 (1939); Erie R. Co. v. Swiderski, 197 F. 521 (3 Cir. 1912); Cohen v. Pennsylvania-Reading Seashore Lines, 58 F. Supp. 545 (E.D. Pa. 1944); See also Houston v. Delaware L. & W.R. Co., 274 F. 599 (3 Cir. 1921); Lissak v. Pennsylvania R. Co., 33 F. Supp. 214 (E.D. N.Y. 1940).
Prior to Egan v. Erie R. Co., supra, the cases that explicitly stated that the theory of the statute ...