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Civil Model Jury Charge 5.21 DUTY OF RAILROAD AT PUBLIC HIGHWAY GRADE CROSSING

5.21 DUTY OF RAILROAD AT PUBLIC HIGHWAY GRADE CROSSING (Approved before 1983)

http://www.judiciary.state.nj.us/civil/civindx.html

A. In General

Every railroad company is required to 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 highway travelers.

NOTE TO JUDGE

N.J.S.A. 48:12-58 This is usually a cross-buck X sign reading Railroad Crossing. Such sign need not be maintained in any municipality unless required by its governing body, or by the board.

The statutory duty which a railroad company owes to a highway traveler at a grade crossing is created by N.J.S.A. 48:12-57. That statute provides that each engine shall have 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 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.

Cases:

Sotak v. Pennsylvania Railroad Co., Jelinek v. Sotak, et al, 13 N.J. Super. 130 (App. Div. 1951), revd, 9 N.J. 19 (1954); N.J.S.A. 48:12-57. (Where there are no crossing bells, flasher, wig-wag signals, gates or crossing watchman, unless it is an extra-hazardous crossing, this is ordinarily the only duty owing).

See, however, Rafferty Admr. v. Erie R.R. Co., 66 N.J.L. 444 (Sup. Ct. 1901) and Taylor v. Lehigh Valley R.R. Co., 87 N.J.L. 673 (E. & A. 1915) as to duty when engineer detects position of plaintiff in time to avoid collision.

B. At Protected Crossings

Where a railroad company has installed any automatic device designed to protect the travelling public at any crossing, the railroad company is under a duty to exercise reasonable care to keep and maintain the said automatic device in operating condition.

Where a railroad company has placed a watchman or flagman on the crossing to warn the public highway traveler of the approach of its trains, it is liable for his/her negligent acts in the performance of his/her duties.

Cases:

Passarello v. W.J. & S.R. Co., 98 N.J.L. 790 (E. & A. 1923); Snuffin v. McAdoo, 93 N.J.L. 231 (E. & A. 1919); Piper v. Erie R.R. Co., 9 N.J. Misc. 40 (Sup. Ct. 1930).

These duties apply whether the added protection at the crossing was voluntarily provided or ordered by the Public Utility Commission. See also Model Civil Charge 5.10C and cases cited thereunder.

C. At Extra-Hazardous Crossings

Where a railroad crossing is so peculiarly dangerous that a reasonably prudent person could not use the highway in safety, even though the statutory signals by the engine bell or whistle are given, the railroad has the duty to employ extra means to signal the approach of its trains, beyond those required by statute. It is for you to determine here whether the railroads warning system, taken as a whole, gave sufficient notice of danger. In passing on the sufficiency of the warning system maintained at the railroad crossing, the test which you will apply is whether the system adequately alerts reasonably prudent travelers to the hazards of the crossing. The railroad is entitled to rely on the fact that the highway traveler will be attentive to the warning system maintained at the crossing, and if you find that the safety measures in effect are sufficient to warn a reasonably prudent person, the railroad has fulfilled its duty, while if you find otherwise, it has not done so.

[Where appropriate, the following may be added by way of explanation:]

Automatic warning devices at grade crossings, unlike the standard cross-buck sign, are designed to alert the traveler to stop in a place of safety even though he/she does not or cannot see an approaching train. In effect, such devices are a substitute for an unobstructed view of the train as it nears the crossing. While the standard cross-buck sign is designed merely to inform a traveler that he/she is nearing a railroad crossing, automatic devices do much more; they warn that a train is actually approaching.

Cases:

Duffy v. Bill, 32 N.J. 278 (1960); DiDomenico v. Pennsylvania-Reading Seashore Lines, 36 N.J. 455 (1962); Shutka v. P.R.R. Co., 74 N.J. Super. 381 (App. Div. 1962).

ADDITIONAL NOTES ON EXTRA-HAZARDOUS CROSSING

The question of whether a crossing is extra-hazardous is initially one of law for the court. If there is sufficient evidence, the issue should be submitted to the jury. Duffy v. Bill, 32 N.J. 278, 293 (1960).

In an action for personal injuries and property damage arising out of a railroad grade crossing collision between the plaintiffs automobile and the defendants freight train, the Supreme Court held that where a railroad had fully complied with the statutory requirements relative to warning systems at crossings and where, although the area around the crossing had changed since the warning system was installed, such changes did not reduce the effectiveness of the system, the railroads failure to provide extra precautions was not negligence, and was not liable for motorists injuries. There the railroad was single tracked and the crossing was marked by two warning sign posts with cross-buck signs inscribed with reflector letters, flashing red lights and bells, which devices operated automatically upon the approach of a train. DiDomenico v. Pennsylvania-Reading Seashore Lines, 36 N.J. 455 (1962).

Railroad accident cases are considered in the light of general tort law and the railroad in the absence of contributory negligence is liable to an injured person if it has not taken safety measures commensurate with the dangers involved. If the crossing is peculiarly dangerous that reasonably prudent persons could not use it in safety, then the railroad has the duty to employ extra means to signal the approach of its trains. Id. at p. 467.

The railroad is under a duty to appraise changing conditions and alter its warning system if necessary to safeguard reasonably prudent motorists even if the Public Utility Commission has not ordered such change. Id. at p. 471.

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Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

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p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means:
YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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