[193]*193The opinion of the court was delivered by
Parker, J.
Our examination of the evidence and proceedings in this case satisfies us that the verdict should be set aside and a new trial granted, and this on several grounds.
First. We are of opinion that the verdict, so far as predicated on the alleged failure of the defendant to give the statutory crossing signals by bell or whistle, was clearly against the weight of evidence. The three survivors of the accident testified they were looking straight ahead, saw no sign of a railroad and heard no bell or whistle. Six other witnesses, at varying distances from the track, testified for the plaintiff that they heard neither hell nor whistle. One was positive that the whistle did not blow, but was not sure about the bell, and said it might have rung but he did not hear it. On the other hand, one witness, who was at the automobile garage which hid his view of the train, was apprised of its approach by hearing the bell ring; another who was driving on Main street, which is the next street west of Broad street, stopped his horse on account of hearing the bell, so as to let the train go by, and says that the hell continued to ring as the train crossed Main street. He also testified to continuous blowing of the whistle, but probably confused this with the blowing off of steam as testified to by another witness. His wife, who was with him in the carriage, gave similar testimony. Three other disinterested witnesses, Mr. Kellogg, Miss Kraser and Mrs. Flynn, testified positively to the ringing of the bell for a considerable distance before the train reached the crossing. Mrs. Flynn said she was engaged in conversation at the time and had to stop on account of the noise of the bell and of escaping steam from the locomotive. In addition, the engineer, fireman and baggageman „ of the train all swore definitely and positively to the ringing of the hell all the way from Matawan yard, a distance of over a mile. The case for the defendant is not as strong as in Eissing v. Erie Railroad Co., 44 Vroom 343, hut the evidence seems nearly, if not quite, as cogent as in Holmes v. Pennsylvania Railroad Co., 45 Id. 469, in which the Court of Errors and Appeals sustained a direction of verdict for the defendant on [194]*194the ground that the positive evidence of the statutory signals entirely destroyed the probative force of negative evidence for the plaintiff, from which, if uncontradicted, the absence of such signals might have been inferred. Without going so far as to say that this phase of the case should have been removed from the consideration of the jury, it is obvious that a finding, on this evidence, of absence of signal by bell or whistle, cannot be fairly supported.
Second. There was another theory on which the court instructed the jury, erroneously, as we think, that they might find the defendant guilty of negligence causing the accident. The court charged that as the evidence showed that the crossing bell was not sounded as the-train approached, the jury might consider that fact as bearing not only upon the question of defendant’s negligence, but also upon the question of notice to the plaintiff driving the automobile, as he approached the crossing. The case for the plaintiffs rested on the theory that they were unaware of the crossing and that no adequate notice of it was given. Hence it is evident that they placed no reliance on the bell to warn them of the approach.of the train, in which case only could the failure to ring it be regarded as negligence directly tending to cause the accident. There was error, therefore, in charging the jury that failure to ring the crossing bell to signal the approach of the train might be regarded as such negligence.
'Third. The court also erred in charging the jury that by reason of the physical conditions existing they might regard the crossing as a place of extra danger and hold the company to a duty of extra precautions, and especially of giving visible notice of the approach of the train. The charge on this point was as follows:
“It appears that the company has located its tracks through or alongside of some buildings, and slightly depressed those tracks as they cross Broad street, at an acute angle of° sixty-six degrees and twenty-nine minutes, and that bushes and other obstructions obscured the train from the vision to some ■extent of one approaching the crossing on Broad street. If you think that the existence of the buildings and the course [195]*195of the acute angle in the case rendered the use of this railroad crossing dangerous, so that, in its ordinary use of the street called Broad street, this statutory signal would not give reasonable warning of the approach of trains, then it is for you to say whether the railroad company should not have provided some other notice of the approach of a train, such as the construction of a gate, the presence of a flagman, or a crossing bell. But, you can only say that such a duty on the part of the railroad company existed provided you come to the conclusion that because of the existence of the houses, buildings and the angle at which the railroad crosses the street, or other obstructions, the use of the railroad crossing was extra-hazardous to the people using Broad street to such an extent that the ordinary statutory signals would not give fair warning of the approach of trains.
“Should you come to that conclusion, you would have a right to exact of the railroad company the duty of giving some visible notice that the train was approaching, and a failure to do what you think ought to have been done would, under those circumstances, be negligence chargeable to the company.”
The rule is well settled that when a railroad company has created at a crossing a place of extra danger, it is bound to use extra precautions (Pennsylvania Railroad Co. v. Matthews, 7 Vroom 531, 535); but only when the situation has been created by some act of the company. New York, Lake Erie and Western Railroad Co. v. Leaman, 25 Id. 202; Philadelphia and Reading Railroad Co. v. State, 32 Id. 71; Siracusa v. Atlantic City Railroad Co., 39 Id. 446. As will appear later, we do not think that the evidence showed the place to be one of extra danger, but conceding this for the present, there was nothing in the case to show that any alleged dangerous feature of the crossing vras occasioned by the act of the company. The charge in this respect therefore was erroneous.
Fourth. We turn now to a point which relates solely to the right of recovery by the executrix of Christopher Ilorandt, deceased, viz., the contributory negligence of said deceased. [196]*196He was driving the automobile; the other plaintiffs, including his wife, were mere passengers, exei'eising no control over his actions, and, as the trial judge correctly charged, unless there was something that they individually should have done in the exercise of due care to avoid injury (and of this there is no claim), they are not chargeable with contributory negligence, as negligence of the deceased cannot be imputed to them. New York, &c., Railroad Co. v. Steinbrenner, 18 Vroom 161; Consolidated Traction Co. v. Hoimark, 31 Id. 456; Noonan v. Consolidated Traction Co., 35 Id. 579. With regard particularly to Mrs.
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[193]*193The opinion of the court was delivered by
Parker, J.
Our examination of the evidence and proceedings in this case satisfies us that the verdict should be set aside and a new trial granted, and this on several grounds.
First. We are of opinion that the verdict, so far as predicated on the alleged failure of the defendant to give the statutory crossing signals by bell or whistle, was clearly against the weight of evidence. The three survivors of the accident testified they were looking straight ahead, saw no sign of a railroad and heard no bell or whistle. Six other witnesses, at varying distances from the track, testified for the plaintiff that they heard neither hell nor whistle. One was positive that the whistle did not blow, but was not sure about the bell, and said it might have rung but he did not hear it. On the other hand, one witness, who was at the automobile garage which hid his view of the train, was apprised of its approach by hearing the bell ring; another who was driving on Main street, which is the next street west of Broad street, stopped his horse on account of hearing the bell, so as to let the train go by, and says that the hell continued to ring as the train crossed Main street. He also testified to continuous blowing of the whistle, but probably confused this with the blowing off of steam as testified to by another witness. His wife, who was with him in the carriage, gave similar testimony. Three other disinterested witnesses, Mr. Kellogg, Miss Kraser and Mrs. Flynn, testified positively to the ringing of the bell for a considerable distance before the train reached the crossing. Mrs. Flynn said she was engaged in conversation at the time and had to stop on account of the noise of the bell and of escaping steam from the locomotive. In addition, the engineer, fireman and baggageman „ of the train all swore definitely and positively to the ringing of the hell all the way from Matawan yard, a distance of over a mile. The case for the defendant is not as strong as in Eissing v. Erie Railroad Co., 44 Vroom 343, hut the evidence seems nearly, if not quite, as cogent as in Holmes v. Pennsylvania Railroad Co., 45 Id. 469, in which the Court of Errors and Appeals sustained a direction of verdict for the defendant on [194]*194the ground that the positive evidence of the statutory signals entirely destroyed the probative force of negative evidence for the plaintiff, from which, if uncontradicted, the absence of such signals might have been inferred. Without going so far as to say that this phase of the case should have been removed from the consideration of the jury, it is obvious that a finding, on this evidence, of absence of signal by bell or whistle, cannot be fairly supported.
Second. There was another theory on which the court instructed the jury, erroneously, as we think, that they might find the defendant guilty of negligence causing the accident. The court charged that as the evidence showed that the crossing bell was not sounded as the-train approached, the jury might consider that fact as bearing not only upon the question of defendant’s negligence, but also upon the question of notice to the plaintiff driving the automobile, as he approached the crossing. The case for the plaintiffs rested on the theory that they were unaware of the crossing and that no adequate notice of it was given. Hence it is evident that they placed no reliance on the bell to warn them of the approach.of the train, in which case only could the failure to ring it be regarded as negligence directly tending to cause the accident. There was error, therefore, in charging the jury that failure to ring the crossing bell to signal the approach of the train might be regarded as such negligence.
'Third. The court also erred in charging the jury that by reason of the physical conditions existing they might regard the crossing as a place of extra danger and hold the company to a duty of extra precautions, and especially of giving visible notice of the approach of the train. The charge on this point was as follows:
“It appears that the company has located its tracks through or alongside of some buildings, and slightly depressed those tracks as they cross Broad street, at an acute angle of° sixty-six degrees and twenty-nine minutes, and that bushes and other obstructions obscured the train from the vision to some ■extent of one approaching the crossing on Broad street. If you think that the existence of the buildings and the course [195]*195of the acute angle in the case rendered the use of this railroad crossing dangerous, so that, in its ordinary use of the street called Broad street, this statutory signal would not give reasonable warning of the approach of trains, then it is for you to say whether the railroad company should not have provided some other notice of the approach of a train, such as the construction of a gate, the presence of a flagman, or a crossing bell. But, you can only say that such a duty on the part of the railroad company existed provided you come to the conclusion that because of the existence of the houses, buildings and the angle at which the railroad crosses the street, or other obstructions, the use of the railroad crossing was extra-hazardous to the people using Broad street to such an extent that the ordinary statutory signals would not give fair warning of the approach of trains.
“Should you come to that conclusion, you would have a right to exact of the railroad company the duty of giving some visible notice that the train was approaching, and a failure to do what you think ought to have been done would, under those circumstances, be negligence chargeable to the company.”
The rule is well settled that when a railroad company has created at a crossing a place of extra danger, it is bound to use extra precautions (Pennsylvania Railroad Co. v. Matthews, 7 Vroom 531, 535); but only when the situation has been created by some act of the company. New York, Lake Erie and Western Railroad Co. v. Leaman, 25 Id. 202; Philadelphia and Reading Railroad Co. v. State, 32 Id. 71; Siracusa v. Atlantic City Railroad Co., 39 Id. 446. As will appear later, we do not think that the evidence showed the place to be one of extra danger, but conceding this for the present, there was nothing in the case to show that any alleged dangerous feature of the crossing vras occasioned by the act of the company. The charge in this respect therefore was erroneous.
Fourth. We turn now to a point which relates solely to the right of recovery by the executrix of Christopher Ilorandt, deceased, viz., the contributory negligence of said deceased. [196]*196He was driving the automobile; the other plaintiffs, including his wife, were mere passengers, exei'eising no control over his actions, and, as the trial judge correctly charged, unless there was something that they individually should have done in the exercise of due care to avoid injury (and of this there is no claim), they are not chargeable with contributory negligence, as negligence of the deceased cannot be imputed to them. New York, &c., Railroad Co. v. Steinbrenner, 18 Vroom 161; Consolidated Traction Co. v. Hoimark, 31 Id. 456; Noonan v. Consolidated Traction Co., 35 Id. 579. With regard particularly to Mrs. Horandt, it may be remarked that her case is not controlled by the decision in Pennsylvania Railroad Co. v. Goodenough, 26 Id. 577, in which it was held that in actions by husband and wife for a tort to the wife, his contributory negligence would defeat the suit because of his common law interest in and control of the recovery. The present ease differs in that there is no husband to exercise any such control, he having perished in the accident, and as a result the right of action enures to the wife alone. This makes it unnecessary to consider toe'effect of the statute of 1906 (Pamph. L., p. 525) giving to married women the right of suing without joinder of the husband for all torts to person or property, and which was considered by Judge Tanning to divesf the husband of all interest in the suit. Long v. Pennsylvania Railroad Co., 30 N. J. L. J. 56.
Coming now to the question whether deceased was himself guilty of contributory negligence, we think that anyone approaching this railroad crossing via Broad street from the south, and having knowledge or notice of its existence, could not fail io see an approaching train if he exercised due care. A reference to- the statement of facts at the head of this opinion will exhibit the correctness of this view. To the right for a distance of nearly one hundred feet from the track the view of a train was over an open field and unobstructed by anything but the line of telegraph poles, which was negligible as a factor. To the left, from which direction the train approached, the view was equally clear for an indefinite distance down the track, on passing the small garage, over [197]*197sixty feet from the nearest rail. The photographs submitted on this phase of the case are convincing, and that the driver of an automobile approaching under these circumstances could and should see a train in ample time to avoid collision by stopping is a proposition that needs but to be stated. In (his aspect of the case it may be remarked that the question wiici her the crossing was a place of extra danger was not a jury question and should have been decided by the court in the negative. Going one step farther, we resort to the general rule that if the circumstances are snch that a party in the exercise of ordinary care would of necessity become aware of an existing situation, he is charged with knowledge of that situation and cannot escape responsibility by pleading actual ignorance of it. This rule is applicable in the present case. The physical situation pointed unmistakably to the presence of a railroad at that place. True, there were no gates, but there was a railroad crossing sign of full size, plainly visible except as to the small section covered by a telegraph pole; the bell signal post and sign, though the latter was partly illegible, were fully as large as the crossing sign and conspicuous enough and the word “danger” plain enough to attract attention and provoke inquiry; as the auto ear áppreached, the track itself came into view on both the right and left, bordered with two lines of telegraph poles; the ties were visible, not obscured by the weeds and grass to any extent; within sixty feet of ¡he railroad the view to both right and left was over an open lot, with the railroad stretching out on both sides and the station and iis semaphore in full view. By that time, at the speed of the automobile and train, as testified to, the train itself was within plain sight and doubtless passing the station. It is inconceivable that anyone having his faculties and using them in the most casual way could fail to become aware not only of the crossing hut of the train itself. Only one explanation seems opon, and that is that the driver of this automobile, not expecting a railroad at that place, gave no aticniion to his surroundings and pursued his way with eyes fixed on the roadway just ahead of him until too late to stop. Due care in driving an automobile or any other vehicle de[198]*198mands at least some attention to tlie surroundings, and railroads are so plentiful in this state that the presence of a railroad track in a town or village is naturally to be expected. The railroad was lawfully there; it had complied with the statute, by erecting the crossing sign. It might be too much to say that travelers were thereby charged with notice of the presence of a railroad track, but we need not go so far as this. Our view is that, taking this and the other indications together, the presence of that track was perfectly obvious; that any traveler using ordinary care for his safety would necessarily see the indications of the railroad and would be therefore charged with notice of it, and having that notice, could not get into collision with a train at that point unless through his own negligence or some inevitable accident. In this view of the case of Carrie S. Horandt as executrix of her deceased husband, the court should have directed a verdict for the defendant.
The rules to show cause will be made absolute.