Brinkerhoff v. Pennsylvania Railroad

245 A.D. 561, 283 N.Y.S. 109, 1935 N.Y. App. Div. LEXIS 10358

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1935
• Status: Published

Opinions

Taylor, J.

Decedent’s automobile while being driven by him southerly across defendant’s railroad track at grade in the daytime was struck by defendant’s train and decedent was killed. On the trial plaintiff was nonsuited on the ground that the proof showed contributory negligence in decedent as a matter of law. The railroad crossed the highway at an angle northeasterly and southwesterly, the highway running northerly and southerly. The train, consisting of an electric car, a baggage car and one coach, was being backed across the highway from the southwest. The coach was the northerly or rear car, nearest to decedent, and the motive car was on the southerly end farthest from the highway. On the side of the highway from which the train came the railroad ran near to and substantially parallel with the highway, then turned rather abruptly and across the highway. There was sufficient testimony to raise a question of fact as to decedent’s negligence. The record shows that a truck approached decedent from the south or opposite direction to that in which decedent was driving and swerved toward him when about on the railroad track and before decedent’s car had reached the track. A witness in an automobile about seventy-five feet behind decedent testified that it was difficult to tell whether the train (backing substantially directly toward the witness as he neared the track) “ was going or coming.” There was no affirmative testimony that decedent did not look or take other precautions —■ contrary to the situation in Schrader v. N. Y., C. & St. L. R. R. Co. (254 N. Y. 148). In Cassidy v. Fonda, J. & G. R. R. Co. (200 App. Div. 241; affd., 234 N. Y. 599, cited in the opinion of our Mr. Justice Crosby in McCowan v. Lehigh Valley R. R. Co., 232 App. Div. 446) there was affirmative testimony as to the distance of the car and the truck from the crossing when the occupants of each could first see each other and the surrounding circumstances differed radically from those here involved.

Unless there is no possible hypothesis forbidding the imputation of contributory negligence as a matter of law (Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345, 349), this judgment should be reversed. Decedent was not required to look at any particular time or place and no one can say that he did not look in ample time, nor that when he looked he saw anything more than the end of a railway coach which might be coming or going or standing still, the baggage and electric cars being hidden from his view, nor can it be said that his attention was not immediately drawn to the oncoming truck swerving toward him before he reached the track, so that he was not required to look again to his right. Decedent’s exercise of care should have been submitted to the jury “ unless it appears that the uncontradicted proof of his own negligence is so certain and convincing that no reasonable mind could reach the conclusion that he had been careful, even though a verdict in his favor would be set aside as against the weight of evidence.” (Seyford v. Southern Pacific Co., 216 N. Y. 613, 615.) It did not so appear.

The judgment and the order, insofar as it denies the motion for a new trial on the minutes, should be reversed on the law and a new trial granted, with costs to appellant to abide the event, on the ground that the testimony does not affirmatively show contributory negligence in decedent as a matter of law. (McCowan v. Lehigh Valley R. R. Co., supra; Chamberlain v. Lehigh Valley R. R. Co., 238 N. Y. 233.) This determination renders consideration of that part of the order which denies a motion for a new trial upon the ground of newly-discovered evidence, unnecessary.

All concur, except Edgcomb and Crosby, JJ., who dissent and vote for affirmance in an opinion by Edgcomb, J. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.