Acken v. CampbellAcken v. Campbell
Plaintiff Harriet Acken, individually and as executrix of the estate of Robert C. Acken (decedent), instituted this action to recover damages for the wrongful death of decedent, her husband, as the result of an accident at a railroad crossing. The action was originally instituted against defendants The Reading Company (railroad) and its engineer James Allen Campbell. At the first pretrial
Acken was employed by H.W. Alward Construction Co., an independent contractor, which was engaged in performing construction work on the premises of the water company at the time of the accident. On January 8, 1969, at about 8:45 A.M., Acken, with Robert Gifford, a co-employee, as a passenger drove his pick-up truck from the water company property in a northerly direction on a road known as Polhemus Lane intending to cross a certain railroad crossing located thereon. As Acken reached the crossing the pick-up truck was struck by a Reading train, and Acken was killed. The train‘s headlight was on and the bell ringing, although the horn was not being sounded. The engineer of the train did not see the pick-up truck until the moment of impact due to a white pick-up truck which was parked on railroad property near the track. The distance from the entrance of the water company property to the crossing was about 60 feet. Gifford, who testified, over objection, that Acken had the habit of coming to a stop to make observations on the several occasions he had driven with him over the crossing, also testified that at the time of the accident Acken was driving at about ten miles an hour, the heater was on, the windows were rolled up, and the two were engaged in light conversation. About three-quarters of a mile back from the crossing towards the plant, they stopped once to use the “inter-com” radio to call someone for equipment. The next thing Gifford remembered was getting hit by something and waking up under a train. He testified that he had no recollection of what transpired between the radio conversation and waking up after the accident.
The jury rendered a verdict in favor of plaintiff against the railroad and the water company in the amount of $170,000, and the trial judge added interest in the amount
The railroad contends at the outset that the trial court erred in submitting to the jury the issue of whether the crossing at Polhemus Lane was a public or private crossing, and in charging the jury as to certain statutory regulations applicable only to public crossings because there was no evidence that the crossing was other than private; and that the trial court should have so held as a matter of law.
The Legislature has established statutory regulations for the operation of railroad trains at grade crossings.
Every company operating on a fixed track or tracks, freight or passenger trains or cars, shall provide protection to pedestrians and the traveling public at every crossing of its tracks by any public road. Such protection may be in the form of safety gates, flagmen, electric bell, electric signs or other recognized system of alarm or protection approved by the Board of Public Utility Commissioners.
Every railroad company shall place on each engine a bell weighing not less than 30 pounds which shall be rung continuously in approaching
a grade crossing of a highway, beginning at a distance of at least 300 yards from the crossing and continuing until the engine has crossed such highway, or a whistle or horn operated by steam, air or electricity, which shall be sounded, except in cities, at least 300 yards from the crossing and at intervals until the engine has crossed the highway.
Every railroad company shall install and maintain at each highway crossing at grade a conspicuous sign with such inscription and of such standard and design as shall be approved by the Board of Public Utility Commissioners, so as to be easily seen by travelers.
The railroad‘s operating Rule 14L provides that at public crossings engine whistles will be sounded, and operating Rule 14P provides that a succession of short sounds of the locomotive whistle or horn be used as an alarm for persons or livestock on the tracks. The trial judge charged, in substance, the aforementioned statutory regulations and railroad operating rules, instructing the jury in part:
If you find that the Polhemus Lane crossing was private at the time of the accident, then the prescribed protective measures were not required by statute.
Our study of chapter 12 of Title 14 fails to reveal the existence of a statutory definition of “public road” or “highway.” Chapter 15 of Title 48, however, provides:
The word “street” when used in this chapter means and includes a public street, avenue, highway, road, alley, lane, plaza, square or other public place. [
N.J.S.A. 48:15-1 ; emphasis supplied]
It has been held under the Traction Act of 1893, the predecessor of the above statutory section, that a street laid out by an owner upon his own land and dedicated by him to the public was not a street or a highway within this section in the absence of acceptance by the public authorities, where they assumed no care for the street despite occasional use for passage by pedestrians or vehicles. Pease v. Traction Co., 69 N.J.L. 165, 167 (Sup Ct. 1903). In Parsippany-Troy Hills Tp. v. Bowman, 3 N.J. 97, 104 (1949), where our Supreme
1 — By a laying out according to the statute;
2 — By the uninterrupted use and enjoyment by the public of the road as a highway for not less than 20 years without any circumstances to negative the intention to dedicate, and
3 — By the actual dedication by the owner to the public as a highway.
In Olsen v. Erie Railroad Co., 99 N.J.L. 485 (E. & A. 1924), the court affirmed a nonsuit for plaintiff whose decedent was killed while walking across defendant‘s tracks at a crossing built by a certain company and used only by those doing business with that company. The court held that the crossing was a private one, and that a jury could not have found otherwise. It was stated by the court:
There is no evidence that the Edison crossing is a public highway. The evidence is to the contrary. A public highway can be established by prescription (Riverside v. Pennsylvania Railroad Co., 74 N.J.L. 476, 479), even across the right of way of a railroad company. (Drelich v. Erie Railroad Co., 91 Id. 600, 602.) One of the essential attributes of a prescriptive right is the use by the public of the neighborhood. Riverside v. Pennsylvania Railroad Co., supra. In our view, such a public use is not made out by proof of the use of a crossing, either by the employees of or those having business with the concerns to whose plants or docks it gives access (Staub v. Public Service Railway Co., 97 Id. 297), or by one individual. (Wood v. Hurd, 34 Id. 87.)
In the instant case, the testimony showed that, with the exception of one police captain, the only persons using the Edison crossing were its employees, or invitees and boat captains, employed on barges using the docks. Their use of the crossing, in such circumstances, was not indiscriminate and in their capacity as members of the general public, but because of their relationship to particular property owners or users. [at 487]
The test employed in the Olsen case was quoted with approval by the Appellate Division in Stallone v. Schiavone-Bonomo Corp., 103 N.J. Super. 170 (App. Div. 1968),
Appellant‘s proofs fell short of the mark of supporting its contention that the paved strip was in fact a public street. The mere fact that the public was not excluded is not enough to create a use by prescription. The inquiry should be: Did those who passed and repassed over the strip use it indiscriminately and in their capacity as members of the general public, or did they do so because of their relation to particular property owners or users as, for example, appellant company? See Olsen v. Erie R.R. Co., 99 N.J.L. 485, 487 (E. & A. 1924). The record establishes that the latter was the actual situation. The private nature of the strip was not necessarily destroyed by the fact that it linked two city streets. Cf. Cerria v. Union News Co., 31 N.J. Super. 369, 372 (App. Div. 1954). [at 174]
In Webb v. W. Jersey and Seashore R. Co., 100 N.J.L. 204, 206 (Sup. Ct. 1924), the plaintiff was injured when she drove across an undisputedly private railroad crossing. Defendant railroad appealed a verdict in favor of plaintiff alleging, among other things, that the verdict was against the weight of the evidence. The court, in rejecting defendant‘s contention, noted that since the crossing was private the statutory provisions relating to required signals did not apply.
In Gifford v. Pennsylvania R. Co., 119 N.J.L. 397 (E. & A. 1938), where decedent was killed in driving across an undisputedly private crossing of defendant railroad, the court noted, with respect to the applicability of the original 1910 enactment of
It is not suggested that the statute of 1910 (Pamph. L., p. 490) applies, and probably not, as that act by its title is limited to crossings of public streets and highways, and, as already observed, the road in question was a private crossing. [at 397]
See also, Michael A. Scatuorchio, Inc., v. N.Y., S. & W.R.R. Co., 10 N.J. Misc. 528, 529-531, 159 A. 704 (Sup. Ct. 1932); 74 C.J.S. Railroads § 1, at 318 (1951).
Whether a road is a “public” road or highway is ordinarily a jury question. See Parsippany-Troy Hills Tp. v. Bowman, supra, 3 N.J. at 103. It is generally held that “[i]n an action by a person injured in using a path across railroad tracks, it is usually left to the jury to determine the extent and length of the use of the path by the people in the vicinity of the crossing, and by the public generally, and consequently to determine whether the plaintiff in using the path is to be considered as an invitee or licensee permitted by the railroad company to use the path.” (Emphasis added) 65 Am.Jur.2d, Railroads, § 420, at 591 (1972). However, when it is clear that reasonable men cannot disagree as to a conclusion, the general rule is that the question is one of law for the court and not for the jury. Brogan v. Passaic Daily News, 22 N.J. 139, 149 (1956).
* * * [W]hen the proof of a particular fact is so meager or so fraught with doubt that a reasonbly intelligent mind could come to no conclusion but that the fact did not exist there is no question for the jury to decide. Likewise, when the proof on a question of fact is so strong as to admit of no reasonable doubt as to its existence, again, there is no question for the jury to decide. In both these cases the court must make the determination and advise the jury accordingly * * * [Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y., 22 N.J. 482, 493 (1956); citations omitted]
Our review of the record below convinces us that there was absolutely no proof presented that the railroad crossing at Polhemus Lane was a public crossing. The evidence as to the nature of Polhemus Lane was to the contrary. Two telegrams sent by defendant railroad were offered into evidence by plaintiff. Both, one addressed to the Department of Public Utilities, and the other to the Director of the Division of Railroads, referred to the crossing as “Elizabethtown Water Works’ private crossing.” The evidence established that there was a sign posted on the road facing the approach to the
The evidence relied upon by plaintiff, that plant employees, construction workers, salesmen and delivery men traversed this crossing, is not proof of a use of the crossing that was “indiscriminate and in their capacity as members of the general public,” but, rather, is proof of a use “because of their relationship to particular property owners or users.” See Olsen v. Erie Railroad Co., supra. Nor does the evidence, which plaintiff also relies on, that occasional hunters or fishermen traversed the crossing, despite their being prohibited from doing so, tend in any way to prove the requisite use in order to constitute the crossing a public one. Thus, we are of the view that it was error for the trial court to submit to the jury for their determination the issue as to whether the Polhemus Lane crossing was a “public” or “private” crossing, thus permitting the jury to consider the statutory regulations and the railroad operating rules which apply only to public crossings. We hold that the trial judge should have determined this issue as a matter of law under the facts present in the record. Since the trial judge did not submit special interrogatories to the jury as to whether the Polhemus Lane crossing was a public or private crossing, there is absolutely
The railroad and the water company contend that the trial court also erred in submitting the question of willful and wanton negligence to the jury and in denying their motions for dismissal and entry of judgment with respect to this charge.
The elements of willful and wanton negligence were well defined by our Supreme Court in the case of McLaughlin v. Rova Farms, Inc., 56 N.J. 288 (1970), wherein it was stated:
In our State in order to recover for injuries allegedly produced by willful and wanton misconduct, it must appear that the defendant with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result. [Citations omitted]
* * * * * * * *
As this Court indicated in Krauth v. Israel Geller and Buckingham Homes, Inc., supra, 31 N.J. 270, willful and wanton misconduct signifies something less than an intention to hurt. To establish that condition it is not necessary that the defendant himself recognize his conduct as being extremely dangerous; it is enough that he know, or has reason to know, of circumstances which would bring home to the realization of the ordinary reasonable man the highly dangerous character of his conduct. Taylor v. Lawrence, supra [229 Or. 259], 366 P.2d [735], at 739; Restatement, Torts 2d, supra, § 500, comment c.p. 589. [at 305-306]
The thrust of plaintiff‘s argument, that the railroad was guilty of willful and wanton negligence, as we glean it
In Staub v. Public Service R. Co., 97 N.J.L. 297 (1922), our former Court of Errors and Appeals affirmed a judgment of nonsuit in an action by a plaintiff injured when his vehicle was struck by the defendant‘s trolley car being operated over a private right-of-way. The court held, contrary to the defendant‘s assertion, that there was no evidence of “intentional wrongdoing which amounts to willful or wanton injury.” In reaching this result, the court stated:
The appellant further contends that the case should have been submitted to the jury, because the evidence discloses that the defendant‘s motorman was guilty of wanton and willful injury to the plaintiff‘s property. The appellant argues that the road operation required the use of many trucks and teams for the hauling of gravel; that the defendant‘s servants were aware that these trucks and teams were passing over the crossing; that the crossing was obstructed by shrubbery so that one driving a truck could not obtain a view of the tracks towards the east until within a few feet of it; that with knowledge of these conditions a motorman who propelled his car rapidly towards the crossing without warning was guilty of inflicting a willful and wanton injury. This argument is specious. These facts do not constitute that intentional wrong-doing which amounts to willful or wanton injury.
To establish a willful or wanton injury it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result. 29 Cyc. 509. There is no evidence in this case that the motorman of the car could see the truck upon the track and after such discovery with ample opportunity to stop his car before a collision would occur, deliberately failed to do so. There was therefore no evidence of willful or wanton injury which entitled the plaintiff to a submission of this question to the jury. [at 299-300]
The language of the Staub case was quoted with approval by our present Supreme Court in Egan v. Erie R. Co., 29 N.J. 243 (1959), wherein the court affirmed the granting of a summary judgment in favor of defendant railroad where an infant plaintiff attempted to board a moving freight train operated by defendant and was severely injured when she slipped and fell under the wheels of one of the cars. The evidence there established that while none of the members of the train crew observed the infant plaintiff prior to the accident, the employees of defendant had prior knowledge that children were accustomed to playing upon the tracks in the vicinity where the accident occurred and had on occasions chased them. Plaintiff there argued, as does plaintiff here, in effect, that defendant had actual notice of the presence of the infant plaintiff and omitted to take the necessary precaution of having watchmen on the property and, therefore, was guilty of willful and wanton negligence. In rejecting this argument, the court stated:
The claim of wanton negligence in the defendant‘s failure to have watchmen present at the scene at best supports an allegation of ordinary negligence. In essence, plaintiffs’ claim is based upon the railroad‘s failure to take precautions against reasonably foreseeable harm to children coming upon the right of way after it had notice that children did so trespass.
“To establish a willful or wanton injury it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result.” Staub v. Public Service Railway Co., 97 N.J.L. 297, 300 (E. & A. 1922).
See also King v. Patrylow, 15 N.J. Super. 429 (App. Div. 1951). Even ignoring the fact that in these circumstances a railroad is ordinarily under no duty to provide watchmen, Kaproli v. Central R. of New Jersey [105 N.J.L. 225], supra, its failure to do so falls far short of the standard required for a finding of willful or wanton conduct. Willfulness and wantonness are conclusions to be drawn from a given set of facts and circumstances. When in the light of common experience and judicial precedents the facts and circumstances alleged clearly do not constitute such conduct, the mere fact that plaintiffs characterize them as willful or wanton is not sufficient to create a triable issue. Summary judgment was properly entered for the defendant. [at 254-255.]
The charge of willful and wanton negligence against the water company is also two-pronged. First, plaintiff contends that the water company was desultory in its reaction to complaints of the dangers created by the railroad‘s trains going through the crossing without sounding their horns. Secondly, plaintiff contends that the water company created the parking conditions partially obstructing the view at a certain point by not permitting construction workers to park on its property. We see no merit whatsoever in these charges. The property on which the cars were parked was not owned by the water company but by the railroad. It was not under the control of the water company. While nine months after the accident the Public Utility Commission directed the railroad to erect a fence to prevent parking on the railroad right-of-way, and the water company erected the fence with the railroad‘s permission, that does not establish that the water company had the right or the duty to bar parking on the railroad right-of-way at the time of the accident. It was also established that the water company, upon receipt of a complaint or complaints regarding the crossing (apparently three in a six-year period), communicated with the railroad to discuss the lack of warnings given by the trains as they neared the Polhemus Lane crossing. The attempt to correct this condition by the laboratory supervisor of the water company, Lewis, was unsuccessful, and he, in turn, referred the matter to the plant superintendent of the water company, Caden. Caden also attempted to communicate with the railroad through one of its representatives, who advised him that the matter was not the responsibility of the water company. Plaintiff‘s argument, that since the water company failed to do anything further,
Accordingly, we hold that the trial court also erred in submitting to the jury the question of the alleged willful and wanton negligence of the water company and in denying the latter‘s motion for judgment with respect to that charge as set forth in the amended complaint.
The railroad and the water company both contend also that Acken was guilty of contributory negligence as a matter of law, and that the trial court erred, therefore, in failing to enter judgment in their favor.
It is well established that the mere occurrence of the collision does not indicate per se negligent conduct on the part of decedent. Ackerley v. Pennsylvania R. Co., 130 N.J.L. 292, 296 (E. & A. 1943). “[C]ontributory negligence is an affirmative defense to be proved; and ordinarily the issue is one for the fact-finding tribunal.” Battalglia v. Norton, 16 N.J. 171, 179 (1954). Only in the clearest case of contributory fault, where the contrary hypothesis is not fairly admissible, does the question become one of law. Pangborn v. Central R. Co. of N.J., 18 N.J. 84, 93 (1955). Where different minds may reasonably come to different conclusions as to the facts, or as to the inferences derivable from the facts, whether controverted or not, the question is one for the triers of fact. Shutka v. Pennsylvania R. Co., 74 N.J. Super. 381, 389 (App. Div. 1962), certif. den. 38 N.J. 183 (1962). To justify a directed verdict on such grounds, the contributory fault of plaintiff must appear clearly and conclusively as a fact or as a necessary and exclusive
When the facts and circumstances here involved are considered in the light of the foregoing principles, we are satisfied that the issue of Acken‘s contributory negligence was properly submitted to the jury by the trial court below. The jury could reasonably have found from the evidence and the favorable inferences which might reasonably have been drawn therefrom; that the pick-up truck parked near the tracks interfered with the vision of both Acken and the railroad‘s engineer, and that even though Acken had stopped before crossing the track (a reasonable inference to be drawn from the testimony of his fellow employees that his habit and custom was to stop at the crossing), he could not see the train approaching because his vision was blocked by the pick-up truck, and he could not hear the approach of the train (which admittedly was not sounding its horn) because the truck windows were rolled up, the heater was operating, and there was some conversation between himself and Gifford. The jury could reasonably have inferred from all of the evidence that Acken exercised that degree of care and precaution which a reasonably prudent person would exercise under like circumstances. See George Siegler v. Norton, 8 N.J. 374, 383 (1952).
Accordingly, we hold that the trial court properly denied the motions of the railroad and the water company for judgment based on the alleged contributory negligence of Acken as a matter of law and properly submitted that issue to the jury for their consideration.
Since we are of the view that the trial judge erred, with respect to the railroad, in submitting to the jury the issue of whether Polhemus Lane was a public or a private road and in instructing the jury as to the statutory regulations and the railroad‘s operating rules applicable only to public
In view of the foregoing holding, it is unnecessary to decide the several other issues raised by the railroad and the water company or to consider plaintiff‘s contention raised on cross-appeal that she is entitled to punitive damages.
Reversed and remanded.