James v. D., L. & W. R. R. Co. 92 N. J. L. 4. The Highway Crossing act of 1910 (Comp. Stat., p. 4238, ch. 278, § 36c) does not apply in the case of an accident happening upon a railroad crossing where safety gates are installed. 5. Where a person enters upon a railroad company's right of way as a trespasser and proceeds along that right of way until he reaches a highway crossing and then attempts to cross the railroad tracks on the highway and is injured, he is subject to the common law duty of looking and listening, and, if guilty of contributory negligence, is not entitled to recover damages. 6. Contributory negligence is present in a given case when the injured person by his own negligence has contributed to the injury in such a way that, but for his negligence, he would have received no injury from the negligence of the other party. On appeal from the Supreme Court. For the appellant, Alexander Simpson and George S. Hobart. For the respondents, Maximilian M. Stallman. The opinion of the court was delivered by WALKER, CHANCELLOR. The plaintiff-appellant sued the Delaware, Lackawanna and Western Railroad Company, the Morris and Essex Railroad Company, James F. Moore and Joseph I. Case for damages to herself, resulting from being run down by a train of the Delaware, Lackawanna and Western Railroad Company, lessee of the Morris and Essex Railroad Company, which train was operated by the defendantrespondent James F. Moore, locomotive engineer, the allegation being that the defendant-respondent Joseph I. Case, who was flagman at the crossing where the injury occurred, neglected to close the safety gates at the highway known as Greenwood avenue, in East Orange, New Jersey, before the plaintiff was in a position of danger. The action was tried before Judge Speer and a jury at the Hudson Circuit. At the close of the plaintiff's case the court directed a nonsuit in favor of the Morris and Essex Railroad Company, and at the close of the whole case directed a verdict in favor of the remaining defendants. From the 92 N. J. L. James v. D., L. & W. R. R. Co. judgment thereupon entered the plaintiff has appealed to this court. In the statement of the case, with which the brief for the plaintiff-appellant is prefaced, it is asserted, and may be conceded, that there was evidence from which the jury might have found the following facts: At the point where the railroad crosses Greenwood avenue there are two tracks, one known as the eastbound track, on which trains run to New York; the other known as the westbound track, on which trains run from New York. The highway crosses the tracks at right angles. About three hundred feet to the west of the westerly line of Greenwood avenue is located what is known as the "eastbound station," where passengers board trains for New York. This station is located on the southerly side of the railroad tracks. There are crossing gates at the highway, one located on the northerly, the other on the southerly side thereof, extending all the way across the highway, including the sidewalks on either side. thereof. At the time of the accident a flagman was on duty in charge of the gates. Plaintiff had a return ticket on the line of the defendant railroad, and on the day of the accident had been visiting at East Orange and was intending to return to New York. For that purpose she was on her way to the eastbound station when the accident happened. On her way to the station plaintiff crossed a vacant lot located on the northerly side of, and adjacent to, the northerly right of way line, about four hundred feet east of Greenwood avenue. After crossing this lot she turned to the west and walked along a path on the right of way, which ran parallel with the tracks and five or ten feet distant therefrom. She continued along this path in a westerly direction until she reached the public highway known as Greenwood avenue. When she reached the highway the crossing gates were up. She walked a short distance to a point almost in the centre of the highway and then turned to her left for the purpose of crossing the tracks and proceeded west to the eastbound station. Just as the plaintiff turned to pass over the tracks she saw an eastbound train coming into the station, and thinking that this was the train James v. D., L. & W. R. R. Co. 92 N. J. L. which she was to take to New York she started to hurry over the crossing. While her attention was attracted to this train. a westbound train approached from the opposite direction, moving very slowly, towards and over the crossing. This westbound train gave no signal or warning of its approach until it was about thirty or forty feet away, at which time a sharp blast of the whistle was sounded. Plaintiff was struck by this westbound train while she was in the centre of the crossing. This train was moving not faster than eight miles an hour and could have been stopped within about twenty feet. As a result of the accident plaintiff received very serious personal injuries. The defendant Moore was, as stated, the engineer who was operating the locomotive by which the train was drawn; it was alleged that he was negligent, in that he failed to give any signal of the approach of the train, as required by the statute of this state, and did not keep a proper lookout. The defendant Case was employed by the railroad company as a flagman at the crossing, and it was alleged that he was negligent, in that he did not close the gates or warn the plaintiff of the approach of the train. It ought, perhaps, to be stated that plaintiff was the only one of several witnesses who testified the gates were up, the others said they were down. There was evidence also that the bell on the engine which struck the plaintiff was rung, as required by the statute, but this was disputed, largely by negative evidence. And there was evidence showing that the train was running about twenty miles an hour. These, under our decisions, were jury questions, but the plaintiff was not entitled to go to the jury, as will hereafter appear. The nonsuit as to the Morris and Essex Railroad Company is not before us for consideration. Counsel for the plaintiffappellant concedes that at the trial there was no proof that that defendant had anything to do with the operation of the train which ran the plaintiff down. The principal reliance of the plaintiff-appellant for a reversal of the judgment in this case, is the contention that the 92 N. J. L. James v. D., L. & W. R. R. Co. railroad crossing statutes of 1909, chapters 35 and 96, apply, and that they required the trial judge to submit the question of the plaintiff's contributory negligence to the jury. This the trial judge refused to do, holding that neither statute was applicable, and that the plaintiff crossed the railroad tracks subject to the common law duty of looking and listening and doing those things which would make looking and listening reasonably effective, observing that it was manifest that the plaintiff had not performed, or attempted to perform, that duty, because, if she had looked in the slightest degree, she must have seen the train which struck her, unless some temporary obstruction interfered, in which event she should have delayed crossing until an opportunity was afforded to make the required observation. In this court plaintiff-appellant argues also that the Crossing act of 1910, chapter 278, applies, that under that act also the case was required to be submitted to the jury. This point appears not to have been made in the trial court. The grounds of appeal are-first, that the trial judge should have submitted the issues, so far as they related to the defendants the Delaware, Lackawanna and Western Railroad Company, James F. Moore and Joseph I. Case, to the jury, and second, that whether the last-named defendants were negligent and whether their negligence was the proximate cause of the injury, and whether such injury was caused by contributory negligence on the part of the plaintiff, should have been submitted to the jury. The points made on behalf of the plaintiff-appellant in the argument before us were-first, that there was evidence to go to the jury on the question as to whether the engineer was negligent; second, there was evidence to go to the jury on the question as to whether the crossing gateman was negligent: third, under the crossing statutes of 1909 it was the duty of the trial judge to submit to the jury the question of whether the plaintiff was chargeable with contributory negligence. and under this head it was argued that the Grade Crossing act of 1910 applies, and fourth, plaintiff was not a trespasser at the time of the accident. These contentions will be con James v. D., L. & W. R. R. Co. 92 N. J. L. sidered in their inverse order. Before proceeding to this, however, it is pertinent to remark that the question presented on this record, namely, a claim of liability of a railroad company for an injury at a grade crossing where safety gates are installed, to one who got onto the crossing not over the highway past the gates when up but by getting onto the crossing inside of the company's right of way by coming down alongside of the tracks from a point beyond the highway, is one of novel impression, and, therefore, the cases in our courts in which the effect of the crossing acts were considered in relation to accidents, are not helpful in its solution, because none of them involved any such question. See Tischman v. Erie Railroad Co., 81 N. J. L. 268; Petit v. West Jersey and Seashore Railroad Co., 86 Id. 298; Fernetti v. West Jersey and Seashore Railroad Co., 87 Id. 268; Brown v. Erie Railroad Co., Id. 487; Waibel v. West Jersey and Seashore Railroad Co., Id. 573; Hatch v. Erie Railroad Co., 88 Id. 545; Schnackenberg v. Delaware, Lackawanna and Western Railroad Co., 89 Id. 311; Kratz v. Delaware, Lackawanna and Western Railroad Co., 90 Id. 210. There are, however, cases in other jurisdictions bearing upon the question at issue here, notably Matthews v. Philadelphia and Reading Railway Co., 161 Pa. St. 28, and C. R. I. & P. R. R. Co. v. Eininger, 114 Ill. 79. In Matthews v. Philadelphia and Reading Railway Co. it is stated that for a long time the railroad company had maintained safety gates on each side of the crossing where the accident occurred, and the court said in its opinion (at p. 31): "If the gates were up inviting him to cross, and no warning was given by the watchman, notwithstanding the difficulties of seeing and hearing, it would have been for the jury to determine whether he exercised care according to the circumstances. But if a trespasser reached the middle of that crossing from the ties either up or down the railroad, he is in no sense of the word a traveler from the street approaching danger, and about to exercise a right common to the public, that of crossing the railroad. The watchman will not be on the lookout to warn him, nor will the gates be lowered to |