The opinion of the court was delivered by: Vogelson
This matter is before the court on cross motions by plaintiff to exclude evidence of the Northeast Operating Rules Advisory Committee (NORAC) rules and by defendant to exclude evidence of the Manual on Uniform Traffic Control Devices (MUTCD). They present the court with a question of first impression in New Jersey.
On January 9, 1992, at approximately 9:00 a.m., plaintiff Visitation Rivera (hereinafter Rivera) was traveling north on Mays banding Road at a speed between 35-40 MPH in a Mack dump truck. Upon approaching a railroad grade crossing, Rivera noticed the railroad red warning lights flashing and began to slow down to about 15 MPH. As Rivera approached the tracks he saw defendant flagman Carl Beamer (hereinafter Beamer) standing in the middle of the roadway waiving a red flag. The sky at the time was overcast, it was raining lightly and vegetation prevented plaintiff from seeing anything to his right. Rivera observed traffic ahead of him and on the opposite side of the road continuing, so he continued. By the time Rivera was on the tracks he noticed the shocked look on the face of Beamer who threw up his hands and ran southward to the left of the truck. It was then that Rivera saw the train in his passenger side window. However, it was too late to react because in crossing the tracks, he had shifted the truck in to second gear low and had no power to accelerate. The train hit the truck on the passenger side turning it over on the driver's side. Prior to the accident, though Rivera saw the red warning lights flashing, he could not see or hear the train, since the train's horn never sounded. Beamer was there at the request of the railroad to protect the crossing so the train could keep on going and take less time to get where it was going.
In the instant case the court is asked to determine which of two sets of national regulations control when a motor vehicle is passing over a railroad grade crossing.
The MUTCD rule which addresses flag signals is set out in the manual at Part VI, 6F. *fn1 This section concerns traffic controls for street and highway construction, maintenance, utility and incident management operations. The rules allude to the fact that there are several devices that can be used to signal traffic, some of which include hand signals, STOP/SLOW paddles, lights and red flags. The rules further specify that the use of flags should be limited to emergency situations. Though the MUTCD does not specifically define what an emergency is, MUTCD 6A5 (c), entitled responsibilities, warns that flagging procedures "...should only be employed when required to control traffic or when all other methods of traffic control are inadequate to warn and direct drivers." Considering the rules for traffic to be directed only by using hand signals, lights, stop/slow paddles, and flags, a fair reading of this section would only allow flags to be used when it is inadequate to use any of these other devices.
Plaintiff argues that though the New Jersey Administrative Code does not specifically say that the MUTCD is the signal to be followed, New Jersey has adopted the MUTCD by reference. The foreword to subchapter 1, dealing with the Bureau of Traffic Engineering and Safety Program, says:
The basic principles concerning the design and usage of traffic control devices contained in this Chapter are governed by the curent 'Manual on Uniform Traffic Control Devices for Streets and Highways'....This manual adopted by the Federal Highway Administrator as a national standard for the application on all classes of highways, is adopted by reference herein. *fn2
Defendant does not dispute that the MUTCD is in operation in New Jersey but rather asserts that the MUTCD only applies to road construction or hazardous conditions, and as neither of these conditions existed, the MUTCD does not apply. Plaintiff counters this argument by citing the MUTCD definition of Active Warning Devices which states:
...those traffic control devices activated by the approach or presence of a train, such as flashing light signals, automatic gates and similar devices, as well as manually operated devices and crossing watchman....
Plaintiff argues that flag signals fall under the purview of this definition in that the flagman would be considered a crossing watchman, ...