Drago v. New York Central & Hudson River Railroad

139 A.D. 828, 124 N.Y.S. 374, 1910 N.Y. App. Div. LEXIS 2310

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1910
• Status: Published

Opinions

McLennan, P. J.:

The evidence produced on the part of the plaintiff • established that the defendant was moving or operating a train of cars along Church street, which extends easterly and westerly through the city of Buffalo ; that at the time of the accident, which occurred at about eight o’clock in the evening of the 1st day of September, 1906, the plaintiff assumed to cross the defendant’s tracks, walking along Birdsall street, and was struck by an engine hauling a passenger train of the defendant from the east. There was no headlight burning upon the engine, and the evidence tends to show that no bell was rung or whistle blown to indicate the approach of such train at the crossing in question, so that we have no difficulty in reaching the conclusion that the defendant was guilty of actionable negligence in running its engine across the crossing in question without a lighted headlight and without ringing the bell to apprise pedestrians seeking to use such crossing that its engine or train was approaching.

The serious question, however, presented by this appeal is, did the plaintiff show herself free from the charge- of contributory negligence ? Witnesses called on behalf of the plaintiff testified that as she got within a certain distance of the crossing she was seen to look both ways, presumably for the purpose of ascertaining whether or not a train or engine was approaching the crossing which she was about to cross. Whether or not she saw the train approaching upon making such observation does not appear. It does appear that without any further care or observation she walked onto the track, was struck by the defendant’s train and, we will assume, was in jured, although nothing appears in the evidence to indicate the injury. As bearing upon the question of plaintiff’s conti’ibutory negligence it is testified that at a certain point as she approached the crossing in question she looked in either direction. Whether or not she discovered that a train was approaching and took her chances of passing in front of such train does not appear.. It does appear without contradiction that the train was making such noise as to notify any traveler upon the highway that it was approaching the crossing, and it does not appear that the hearing of the plaintiff was not normal in all respects. The plaintiff approached this crossing when, as we will assume, it was dark. While the headlight of the engine was not lighted, there is nothing to indicate that the plaintiff did not know of the approach of the engine which came in contact with her. Her only evidence upon the subject is that she does not remember anything concerning the happening of the accident. She does not produce any evidence tending, to indicate that she was injured in such manner as to impair her memory, or that she was incapable of describing what she did .or did not do which would relieve her from the charge of contributory negligence in the premises.

The courts have gone a long way in holding that where a plaintiff’s intestate has been killed, thus rendering impossible the giving of testimony by such intestate, inferences may be indulged to the effect that such intestate was free from contributory negligence. But we know of no case where it' has been held that the injured party may be excused from giving evidence tending to free such party from the charge of contributory negligence by simply saying that he or she cannot remember as to the circumstances or facts of the accident, without giving any evidence that such want of recollection was caused by the accident which is complained of.

In the case at bar the evidence tends to show without contradiction that when the plaintiff went upon the tracks of the defendant she knew or ought to have known, in the exercise of. ordinary care and prudence, that the train which struck her was approaching such crossing. The rumble of the train was of itself sufficient to give such warning. The electric lights in the vicinity were such as-to enable travelers upon the crossing to discover the approach of a moving train, notwithstanding we 'may assume that the headlight was not burning and that the bell was not ringing. ■ If the . plaintiff had established by her evidence that she did not see the train in question approaching after having taken due care to have discovered its approach, or that she had exercised any degree of care in attempting to avoid collision with such approaching train, there might be some ground for the appellant’s contention. .But it . seems to me that no case has gone so far as to hold that a plaintiff has established freedom from contributory negligence by simply stating that he or she failed to remember anything respecting the accident which is the subject óf controversy, and without giving any explanation as to why such lack of memory occurred.

Under all the circumstances disclosed by the evidence in this case I think the learned trial court properly held that the plaintiff had failed to establish freedom from contributory negligence, and that, therefore, the motion for a nonsuit was properly granted.

All concurred, except Kruse, J., who dissented, in a memorandum.