Hatch v. Lake Shore & M. S. Ry. Co.

141 N.Y.S. 1055, 156 A.D. 394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1913
• Status: Published

Opinions

KRUSE, J.

The plaintiff’s intestate was struck by the Twentieth Century Limited at a street crossing in the city of Dunkirk, and was killed. The collision occurred at night. The train was going at the rate of 50 to 70 miles an hour. It approached the crossing with headlight out or dim and whistle and bell silent, so the jury could find from the evidence. But there was also evidence tending to show that the man who thus lost his life went upon the tracks after the gates were lowered. The evidence tends to show that after the gates went down a freight train from the west passed over the crossing; at the same time the west-bound Twentieth Century Limited was approaching from the east; that the decedent went upon the tracks while the freight train was passing, or after it had passed, and while the gates were down, and before the Twentieth Century Limited had reached the ■ crossing. Evidently the man was looking out for the freight train, and was unaware of the approaching passenger train, which struck him.

[1] While I think the evidence justifies the finding that the engineer of the colliding train was negligent in running his train as he did, and that if the defendant is liable at all the verdict is not excessive, I am not persuaded that the defendant is liable if the man went upon the tracks while the gates were down. I am not aware that the precise question has ever been decided by the appellate courts of this state. The rule as laid down in the Cyclopedia of Law and Procedure (33 Cyc. 999) is as follows:

“Where the gates across a highway at a railroad crossing are closed, a person attempting to cross generally has sufficient warning that the crossing is for the time being to be used for the passage of trains; and if he is injured in such attempt he is ordinarily guilty of contributory negligence barring a recovery, unless the circumstances at the particular time and crossing áre such that the fact that the gates are closed is not a warning of danger.”

That rule is supported by decisions of the highest courts of Massachusetts and Pennsylvania, and other decisions - there cited. I shall call attention to but two of the decisions. In the case of Cleary v. Philadelphia & Reading R. R. Co., 140 Pa. 19, 21 Atl. 243, it appeared that with the gates down a person started to cross the railroad tracks, and while he was looking at one train he was struck by another, and it was held that the railroad company was not liable. The rule is the same in Massachusetts. Granger v. Boston & Albany R. R. Co., 146 Mass. 276, 15 N. E. 619. In that case the court said:

“In these cases each plaintiff’s intestate was warned by the lowered gates that it was unsafe for him to cross the track. It was his duty to wait till the gates were raised. He voluntarily entered upon the track, notwithstanding the warning and without any excuse. This was negligence on his part which caused the accident, and the consequences of his rashness cannot be cast upon the defendant. It is not an answer to say that he may have supposed that the gates were down because the freight train was passing, and he was willing to take the risk of getting safely by that. He had no right so to suppose. It was negligence for him to enter upon the track when he was warned that the railroad required the exclusive use of the crossing for its proper business.”

The rule of those cases commends itself to my judgment, and I think applies to this case. A person who consciously goes upon railroad tracks at a street crossing, knowing that the gates are closed, takes chances which I think a reasonably careful and prudent person does not ordinarily take. He does so at his peril, and I think is guilty of negligence as a matter of law, unless there are special circumstances to justify him in so doing, and which I think are absent in this case.

The case of Pruey v. N. Y. C. & H. R. R. R. Co., 41 App. Div. 158, 58 N. Y. Supp. 797, I think, is not in conflict with this view. It there appeared that the gates were usually down at the time of day when the person there went upon the tracks and the accident occurred, so that the closed gates would not necessarily indicate that a train was approaching. The complaint here seems to have been framed upon that theory. It alleges that the defendant permitted the gates to be lowered and remain lowered for long" periods of time between certain hours in the night (which included the point of time when this accident occurred), which fact was well known to the decedent and to the public generally. The purpose of that allegation, I assume, was to show that the closed gates did not necessarily mean that a train was approaching. But that claim seems to have been abandoned upon the trial.

[2] It is contended on behalf of the plaintiff that this question was not sufficiently raised. Among other requests the court refused to charge the jury that, if the intestate walked under the gates when down, its verdict should be for the defendant. It is urged that there is no evidence that the decedent walked under the gates when they were down. I think there is evidence which clearly shows that the deceased saw the gates lowered, and that he went onto the tracks without heeding the warning of the closed gates. It is a matter of no importance whether he went under the gate, around it, or jumped over it. The point is that he went upon the tracks, having warning that it was unsafe for him to do so, and that question, I think was-raised by the exceptions to the refusals to charge and instructions actually given upon that point.

The judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event. All concur, except