Hessner v. Delaware & Hudson Railway Co.

Appellate Division of the Supreme Court of New York

Hessner v. Delaware & Hudson Railway Co.

46 A.D.2d 463, 363 N.Y.S.2d 126, 1975 N.Y. App. Div. LEXIS 8519

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 16, 1975

StatusPublished

Cited by3 cases

This text of 46 A.D.2d 463 (Hessner v. Delaware & Hudson Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hessner v. Delaware & Hudson Railway Co., 46 A.D.2d 463, 363 N.Y.S.2d 126, 1975 N.Y. App. Div. LEXIS 8519 (N.Y. Ct. App. 1975).

Pincite

Opinions

Heblihy, P. J.

These negligence actions result from a railroad crossing collision between a tractor trailer operated by plaintiff Hessner and owned by plaintiff Jubrey and a freight train of the defendant. The accident happened on a clear, bright morning at about 7:15 a.m. on June 23, 1970 at a private railroad crossing leading to Norlite Aggregate near the City of Cohoes. The only visible warning was a crossing sign. The tracks of the defendant at the crossing are level and straight for a long distance in both directions and there was testimony that, at distances of about 10-15 feet and 25 feet distant from the tracks, there was visibility ranging from about 400 feet to 1,400 feet. Photographs were admitted in evidence as showing the general conditions existing at the time of the accident in and about the railroad crossing.

As to the negligence of the defendant, there was a conflict of testimony as to whether a bell, horn, or whistle was sounded by the train as it approached the crossing. Some of the defendant’s own witnesses riding on the train could not say with certainty as to whether they heard such a warning and there was other testimony to the same effect. Thus, under the charge of the court, a factual issue was presented and on this record the finding of negligence is sustained.

The issue of contributory negligence presents a more serious and a sharper issue. The court charged that the plaintiff was [465]*465required to use reasonable care for Ms own safety commensurate with the danger confronting him, that he was required to look and listen as he approached the crossing (with which he was familiar) taking into consideration the circumstances surrounding the crossing on the particular occasion.

There is a factual dispute as to whether plaintiff brought his vehicle to a stop as he approached the crossing, but on this record that issue was for the jury.

The plaintiffs’ verdicts must rest on the issue of visibility and what the plaintiff did on the particular occasion. His testimony, in substance, was that, at a distance of approximately 20 feet from the railroad tracks, he stopped, looked in both directions a distance of approximately 200 feet and saw nothing. He started his vehicle and, as he approached the tracks at approximately two miles an hour, and when approximately 10 to 15 feet from the said tracks, he again looked north and south and saw nothing for a distance of approximately 400 feet. The vehicle continued forward and, according to Hessner’s testimony, the front of the tractor was just about on the tracks when, for the first time, he saw the railroad train approaching some 200 to 300 feet distant. On cross-examination he stated that he did not see the train until about two seconds before the collision. Considering this testimony together with the exhibits in evidence, the question remains as to whether the issue of contributory negligence under the circumstances was factual or legal.

Courts are reluctant to set aside verdicts of the jury on the sole ground of contributory negligence even in railroad cases. In this respect, the law has relaxed the former rule wMch applied over a long span of time.

In the present actions there was testimony as to obstructions which interfere with one’s visibility until close to the tracks. While it might be contended that the exMbits in evidence do not demonstrate such facts, the said exhibits are not focused to show the'view as one approaches the railroad crossing. It is not a question as to what might be the opinion of the court but whether or not, on this record, the verdicts in favor of the plaintiffs may be sustained. In view of the negligence of the defendant and a conflict of testimony as to the operation of the vehicle by the plaintiff as he approached the crossing, -we are of the opimon that this created the same factual situation as did the negligence of the defendant and that the record as a whole sustains the verdicts in favor of the plaintiffs.

The judgments should be affirmed, with costs.

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Heblihy, P. J.

These negligence actions result from a railroad crossing collision between a tractor trailer operated by plaintiff Hessner and owned by plaintiff Jubrey and a freight train of the defendant. The accident happened on a clear, bright morning at about 7:15 a.m. on June 23, 1970 at a private railroad crossing leading to Norlite Aggregate near the City of Cohoes. The only visible warning was a crossing sign. The tracks of the defendant at the crossing are level and straight for a long distance in both directions and there was testimony that, at distances of about 10-15 feet and 25 feet distant from the tracks, there was visibility ranging from about 400 feet to 1,400 feet. Photographs were admitted in evidence as showing the general conditions existing at the time of the accident in and about the railroad crossing.

As to the negligence of the defendant, there was a conflict of testimony as to whether a bell, horn, or whistle was sounded by the train as it approached the crossing. Some of the defendant’s own witnesses riding on the train could not say with certainty as to whether they heard such a warning and there was other testimony to the same effect. Thus, under the charge of the court, a factual issue was presented and on this record the finding of negligence is sustained.

The issue of contributory negligence presents a more serious and a sharper issue. The court charged that the plaintiff was [465]*465required to use reasonable care for Ms own safety commensurate with the danger confronting him, that he was required to look and listen as he approached the crossing (with which he was familiar) taking into consideration the circumstances surrounding the crossing on the particular occasion.

There is a factual dispute as to whether plaintiff brought his vehicle to a stop as he approached the crossing, but on this record that issue was for the jury.

The plaintiffs’ verdicts must rest on the issue of visibility and what the plaintiff did on the particular occasion. His testimony, in substance, was that, at a distance of approximately 20 feet from the railroad tracks, he stopped, looked in both directions a distance of approximately 200 feet and saw nothing. He started his vehicle and, as he approached the tracks at approximately two miles an hour, and when approximately 10 to 15 feet from the said tracks, he again looked north and south and saw nothing for a distance of approximately 400 feet. The vehicle continued forward and, according to Hessner’s testimony, the front of the tractor was just about on the tracks when, for the first time, he saw the railroad train approaching some 200 to 300 feet distant. On cross-examination he stated that he did not see the train until about two seconds before the collision. Considering this testimony together with the exhibits in evidence, the question remains as to whether the issue of contributory negligence under the circumstances was factual or legal.

Courts are reluctant to set aside verdicts of the jury on the sole ground of contributory negligence even in railroad cases. In this respect, the law has relaxed the former rule wMch applied over a long span of time.

In the present actions there was testimony as to obstructions which interfere with one’s visibility until close to the tracks. While it might be contended that the exMbits in evidence do not demonstrate such facts, the said exhibits are not focused to show the'view as one approaches the railroad crossing. It is not a question as to what might be the opinion of the court but whether or not, on this record, the verdicts in favor of the plaintiffs may be sustained. In view of the negligence of the defendant and a conflict of testimony as to the operation of the vehicle by the plaintiff as he approached the crossing, -we are of the opimon that this created the same factual situation as did the negligence of the defendant and that the record as a whole sustains the verdicts in favor of the plaintiffs.

The judgments should be affirmed, with costs.

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46 A.D.2d 463, 363 N.Y.S.2d 126, 1975 N.Y. App. Div. LEXIS 8519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hessner-v-delaware-hudson-railway-co-nyappdiv-1975.

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