The question here is whether the circumstances attending a railroad grade-crossing collision bespeak contributory negligence as a matter of law precluding recovery by the injured operator of the motor vehicle and the next of kin of his fatally injured companion and fellow servant in a common employment.
This was deemed to be an issue of fact for the jury; and the propriety of the submission is the subject of inquiry here. There was a verdict of $50,000 for Battaglia, and $75,000 for the administratrix. The Appellate Division of the Superior Court affirmed the consequent judgments. The cases are here by certification at the instance of the defendant trustee. 15 N.J. 380.
The collision occurred May 6, 1952, at 6:45 P.M., Day-light Saving Time, in North Bergen, New Jersey, at the grade crossing formed by the intersection almost at a right angle of Secaucus Road, running generally east and west, and the southbound tracks of the New York, Susquehanna and Western Railroad Company and the northbound tracks of the Northern Railroad, four sets of tracks in all. By agreement, the two easterly sets of tracks were used by both Susquehanna and the Erie Railroad Company for passenger and freight traffic, northbound, and the two westerly tracks for southbound traffic. There was an area 56 feet wide between the northbound and southbound tracks, extending north of the crossing and 2,000 feet to the south, free of obstruction save a succession of telegraph poles running midway both north and south of the crossing, about 69 feet apart (29 of which were south of the crossing), and a mound of earth covered by grass and plant life rising from 2 1/2 feet to between 5 and 7 feet, according to the varying estimates of witnesses. The crossing was protected as a single unit. There were an automatic electric flasher, bell signals, and the standard crossbar warning device at the extreme westerly side of the crossing, on the southerly side of Secaucus Road, and at the extreme easterly side of the crossing, on the northerly side of
Battaglia and the deceased Dann were on their way to New York in their employer's 1924 Mack truck, and in his service. When they reached the crossing, coming from the west, Susquehanna was engaged in a freight-car drilling or switching operation on its westerly southbound tract in connection with the siding north of the crossing, and Battaglia brought his vehicle to a stop. The crossing flasher and bells were in action. After a lapse of five minutes, Susquehanna's brakeman, Terwilliger, disconnected the rear seven cars of the train then obstructing the crossing, at a point 75 feet north of the crossing, and the engine and ten cars, Terwilliger aboard the last car, proceeded south until the last car had passed over the crossing, when the train was halted on a signal given the engineer by Terwilliger, who thereupon alighted and, standing at the right rear and to the west of the last car, at a point not more than 20 feet south of the crossing, according to the plaintiffs' proofs, signaled the waiting drivers of vehicles on the west side of the crossing, among them Battaglia, first in line, to pass over the crossing. The adverse crossing signals the while remained in action; the detached cars were still within the signal circuit, and the signal contact continued. Proceeding over the crossing at the rate of between five and eight miles an hour, the truck was struck by a northbound Erie train. It was raining at the time. Battaglia testified the brakeman called to him as he gave the onward signal by a wave of the hand: "Go ahead, nobody is coming." The brakeman denied that, by word or deed, he gave the safe-crossing sign. He insisted that all his hand signals were directed to the train engineer alone; there is the suggestion of misinterpretation, although this could not be true of his oral direction to Battaglia. But
Conceding that the evidence raised a jury question as to Terwilliger's guilt of negligence attributable to Susquehanna under the common-law maxim of respondeat superior, it is yet insisted that Battaglia and his fellow worker were not entitled to rely "entirely" on the brakeman, "who was in no position to make a better observation than they;" that "upon clearing the freight, they were in a superior position and bound to use reasonable care to make an independent and reasonably effective observation for their own safety," and the conclusion is irresistible either (a) that Battaglia "made his last observation when he reached the line of poles," where "he could not possibly see," or (b) "kept looking all the way past the poles but didn't see or hear the Erie train until it was upon him," and "proceeded heedlessly from a place of safety into the very path of the locomotive which he must have seen and heard," and so there was a departure from the common-law standard of duty so clear and indubitable as to put the question beyond the realm of fair debate. Reliance
It is also urged that the Appellate Division in effect held that the "contributory negligence of the plaintiffs is to be excused if it was `induced' by the defendant's conduct," — i.e., the brakeman's invitation to go upon the crossing, and thus the refusal to hold the plaintiffs contributorily negligent as a matter of law was rested on a theory of "comparative negligence," in disregard of the law of New Jersey.
These are not valid considerations supporting the tendered thesis.
First, the proffered theory of comparative negligence necessarily hypothesizes negligence by Battaglia and the deceased Dann in their entry upon the crossing in response to the negligent all-clear signal given by the brakeman, "excused" because "induced" by his fault. The issue is conceived to be whether the brakeman in this regard was "more or less negligent than Battaglia, and by how much," and whether Battaglia and Dann, the possessors of "superior knowledge of the characteristics of the crossing," were "more or less negligent than the brakeman, and by how much." It is said that such an inquiry involves "a study, not of the causal relation between the act of plaintiffs and the event," but rather "a consideration of a causal relation between the asserted negligence of the defendant and the contributory negligence of the plaintiffs," and the latter relation is alien to the law of New Jersey, suggesting, it is said, that "because the negligence of the plaintiff followed that of the defendant it was caused by it."
But in this there is a basic misconception of the significance of the brakeman's invitation to cross. As we have said, it was conceded that the proofs in that regard raised a question for the jury on the issue of primary negligence
Again, it is suggested that "Even if negligent, the signal amounted to no more than saying, `I have halted our drilling of the freight cars, and the crossing is not blocked. Go ahead.' It did not amount to saying, `Even though you know there is another set of tracks which I cannot see, and even though there is a wide area between tracks where you can make sure no train is coming from the right as you know it must, just close your eyes and drive on through.'" This, too, is wanting in the factual certainty of fault that would preclude controversy among reasonable men, in the exercise of fair and impartial judgment.
The reasoning divides a grade crossing that has always been treated by the railroads themselves as a distinct unit for the installation of signal facilities to warn and protect the travelling public. The brakeman undertook to clear the crossing for public travel; and it was for the jury to say whether his signal was reasonably interpreted as an assurance of safe passage throughout, notwithstanding the continuance of the flasher and bell warnings. Indeed, Battaglia said he had the brakeman's verbal assurance as well of crossing safety. On that hypothesis, the brakeman had assumed the function and responsibility of a crossing watchman; and it cannot
Battaglia affirmed as a witness that he was mindful of his own safety and to this end had made what he deemed to be an effective continuing observation to the south after his truck passed the line of freight cars standing on the westerly track and entered the space between the southbound and northbound tracks. He spoke of the limited vision to the south, not more than 100 feet at the critical point, due to the mound of earth and the vegetation, the varying elevation, the telegraph poles, and the rain and evening half light. He listened for the sounds of an approaching train, and there were none. None of the seven witnesses called by plaintiffs heard a locomotive whistle or bell. And there was evidence that the headlight of Erie's locomotive was dim. Defendant points to what it characterizes a fatal modification of Battaglia's testimony on cross examination, — i.e., that his last look to the south was at the line of poles. There is, however, photographic evidence of another pole halfway between the line of poles and the nearest rail of the westerly Erie track which he may well have had in mind and which may have had an adverse effect on view. And the witness was an untutored immigrant not given to preciseness in the use of the English language; he remained unconscious for four weeks after the collision, and he said his memory had suffered impairment. It was the special function of the jury to assess the quality of the plaintiff's testimony in the light of all the circumstances, an inquiry in which the demeanor and bearing of the witness were no doubt revealing factors. And the proofs afford no basis for holding the deceased Dann negligent as a matter of law.
The defendant trustee would raise a conclusive presumption of negligence from the mere fact of the collision
For affirmance — Chief Justice VANDERBILT and Justices HEHER, OLIPHANT, BURLING and JACOBS — 5.
For reversal — None.