Neudoerffer v. Brooklyn Heights Railroad

9 A.D. 66, 41 N.Y.S. 50

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Per Curiam:

■ The only points made upon this appeal are that the evidénce failed to show any negligence on the part of the defendant, on the one hand, and demonstrated the contributory negligence of the plaintiff, on.tlie other. After a careful reading of. the record, we are satisfied that there was enough to go’ to the jury on both questions. There is no suggestion that the verdict was excessive.

The case of McQuade v. Metropolitan Street Railway Co. (17 Misc. Rep. 154; S. C., N. Y. L. J., May 29, 1896, vol. XY, p. 631), cited in behalf of the appellant, was so different from the present case in its facts that we do not see how it has any application to the circumstances of a collision, between a street car and a wagon. There, the plaintiff, who was crossing the street on foot with her head bundled up to protect her against the cold, unwittingly ran right into the side of the car. The case at bar presents no feature analogous to this.

In the case cited, the Hew York Appellate Term refers to Omslaer v. Traction Co. (168 Penn. St. 521) with evident approval and quotes therefrom as follows: “ The rule of ‘ stop, look and

listen before attempting to cross the tracks of a steam railroad is inflexible and non-observance of it is negligence per se. So much of this rule as requires a person about to cross the tracks, of a steam railroad to ‘ look and listen ’ to discover whether a train is approaching is applicable to the crossing of a street railway operated by cable or electricity.” The learned counsel for the appellant copies this quotation in his brief, and the same passage has lately been brought to our attention by counsel in á number, of other cases. .It seems necessary, therefore, to point out that it is not a correct statement •of the law in this State, so far as it declares it to be negligence per se on the part of a person" who does not stop before attempting to cross the tracks of a steam railroad. The rule of “ stop, look ahd listen” prevails in Pennsylvania, but not in New York. (Damis v. N. Y. C. & H. R. R. R. Co., 47 N. Y. 400.) This hard and fast rule is justly criticised by Mr. C. Stuart Patterson, himself a Pennsylvanian, in his careful and useful treatise on Railway Accident Law (§ 170), where he says: “The Pennsylvania rule also goes further

than that in most other jurisdictions in that it requires the person injured not only to ‘look and listen,” but also to ‘stopyet in most •cases one who approaches the crossing of a railway line can effectually care for his safety by looking and listening, without stopping.”

Judgment and order affirmed, with costs.

All concurred.

Judgment and order Unanimously affirmed.