The night was dark and foggy when the plaintiff, the owner of two motor trucks, was proceeding slowly with them, about two o'clock A.M., along the Tansboro road, near Winslow Junction, en route from Atlantic City to Philadelphia. An experienced motorman, familiar with the route from frequent usage, he drove his car slowly, and became aware of the presence of the railroad tracks only when he reached the first track, and then too late to avert a collision with a freight train, which was occupying the crossing. No personal injury resulted, but the two trucks were materially damaged, and for that injury he instituted this suit, upon the theory that the defendant's employes should have been aware of the presence of the trucks, and should not have reversed or backed the train as they did after the collision actually had taken place. It was also contended that in view of the extraordinary weather conditions, which prevented the plaintiff from obtaining a view much further than the hood of the trucks, the duty was imposed upon defendant of using extraordinary means of warning, *Page 329 commensurate with the situation. The plaintiff, fully acquainted with the environment, was aware that the crossing was unguarded, and possessed neither light, bell nor gates, while the impenetrable fog enveloped and obscured everything along the route. The learned trial court nonsuited, following the rule prescribed in Nadasky v. Public Service Co., 97 N.J.L. 400, and Jacobson v. N.Y. S.W. Railroad Co., 87 Id. 378.
The conspicuous fact in the case is that at the time the railroad train was in actual possession of the crossing, and that the plaintiff collided with the train, and not the converse situation usually presented. To sustain a verdict in such a status it must reasonably appear that the damage resulted by reason of the non-performance by the defendant of some duty imposed upon it by law. Kingsley v. Delaware, Lackawanna andWestern Railroad Co., 81 N.J.L. 536; Matthews v.Pennsylvania Railroad Co., 36 Id. 531.
In the absence of such a situation, liability will not be inferred. The relative rights of the parties here were coequal, and the extraordinary conditions enveloping road and crossing imposd no greater duty of care upon one than upon the other, each exercising a common right of passage. It becomes apparent, therefore, in the light of the adjudications upon which the learned trial court relied as a basis for the nonsuit, that the defendant, under the circumstances, had not violated any legal duty imposed upon it by law in occupying the crossing, or in reversing the train without acquiring positive knowledge of the plaintiff's presence and situation at the time.
For this reason the judgment appealed from must be affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, WHITE, GARDNER, VAN BUSKIRK, CLARK, McGLENNON, KAYS, JJ. 15.
For reversal — None. *Page 330