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Lisowski v. New Jersey Transit

October 10, 2008

ALEXANDRA M. LISOWSKI, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY TRANSIT, DEFENDANT-APPELLANT, AND BOROUGH OF ELMWOOD PARK, COUNTY OF BERGEN, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-13231-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 16, 2008

Before Judges Winkelstein and Fuentes.

Defendant New Jersey Transit appeals from a final judgment following a jury verdict finding it fifty-one percent liable for injuries plaintiff sustained on January 20, 2004, when the car she was driving was struck by a train. We affirm.

I.

As was her custom, on January 20, 2004, at 5:00 p.m., plaintiff left work in Paramus and drove to Garfield to pick up her daughter from an after-school program. She generally took a route over the Midland Avenue railroad crossing. The train traveled over that crossing about the same time every day.

While plaintiff drove south on Midland Avenue toward the crossing, it was getting dark, and, although the roadway was clear, snow was on the sides of the road from snowfall a few days prior. As she approached the railroad crossing, plaintiff was driving behind a tow truck to which one car was attached. Before proceeding over the railroad tracks, the tow truck stopped at a white line on the road in front of the railroad gate. The gate was up at this time and the signal that a train was approaching had not been activated.

The roadway at this location inclined upward toward the tracks. Plaintiff's expert witness testified that when a car is stopped at the white stop line before the railroad crossing, visibility in January at 5:18 p.m., the time plaintiff's car was hit by the train, is such that the driver of the vehicle cannot see whether any vehicles above the incline are on or beyond the railroad tracks.

After stopping, the tow truck proceeded over the tracks. Plaintiff then drove up to the white line, stopped, and looked to see if a train was coming. The gate was still up and the signal that a train was approaching had not been activated. While plaintiff was stopped at the white line, the back of the car attached to the tow truck was about three car-lengths in front of her vehicle.

Plaintiff began to drive up the incline. Claire Choi, who was driving behind plaintiff, had stopped at the white line, thought it was clear to move forward, and started up the incline. She did not cross the tracks, however, because "there was still traffic." Suddenly, the tow truck stopped; part of the car it was towing remained on the tracks. With Choi directly behind her, plaintiff stopped behind the towed vehicle. She looked to her left and saw a train approaching.

Choi testified that while she was stopped on the incline, railroad warning lights activated and the gate started to come down on her car, so she drove in reverse away from the gate. Choi saw that the tow truck and plaintiff's car were still on the tracks.

Plaintiff was blocked by the towed vehicle from moving forward off of the tracks. She was unable to move to the right because snow was on the ground, and she could not move to the left due to oncoming traffic. Consequently, she put her car in reverse, to back off of the tracks. She testified that: "As [she] went back, [her] car fell into a hole." She stated that the car's right front wheel fell into a hole, and when she pushed the gas pedal, the wheel spun and the car did not move.

The train was approaching; it was loud and she could feel its heat. She opened the car door, intending to run, placing her legs and feet out of the car. After her feet hit the ground, she heard the train hit her car and the next thing she remembered was lying on the pavement. Plaintiff ...


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