Raczelowski v. N. Y., N. H. & H. R. R.

94 A. 687, 38 R.I. 194, 1915 R.I. LEXIS 42

• Court: Supreme Court of Rhode Island
• Decided: July 1, 1915
• Status: Published

Opinions

Parkhurst, J.

This is an action of trespass on the case for negligence brought to recover compensation for personal injuries alleged to have been received on August 16th, 1912. The declaration is in two counts, and alleges that at about 7:40 in the evening of that day the plaintiff proceeded northerly on Broad Street, in the City of Pawtucket, crossed the platform of the railroad, which is to the south of the tracks; that he then attempted to take a train for Providence when he was prevented by a fence, which was between the two tracks. Before he could escape, he was struck by a locomotive which was being operated in an easterly direction, whereby he was so severely injured that amputation of the right leg was made necessary. Damages are laid in the sum of $50,000.

More specifically, the first count sets out that the defendant company had formerly had a rule in force which provided that no train should be operated through said station and past another train standing in said station for the reception and delivery of passengers; that .the plaintiff had knowledge of this rule and relied upon it; that notwithstanding said rule a train was sent through the station upon the eastbound track while a train was discharging passengers and taking on passengers upon the westbound track.

The second count alleges that the defendant had constructed a fence between the eastbound and westbound tracks; that no knowledge or notice of the erection and maintenance of this fence had been given the plaintiff; and that at the time of the alleged injury the fence could not be seen because of insufficient light at the station, the result of all of which was injury to the plaintiff as set out in the first count.

To the declaration the defendant filed a plea of general issue. The case was tried before a justice of the Superior Court and a jury between October 26th and November 4th, 1914, and resulted in a verdict for the plaintiff for $10,500. At the conclusion of the testimony the defendant moved that the jury be directed to return a verdict for the defendant, which motion was denied and exception taken thereto. This exception to the refusal of the trial court to direct a verdict and other exceptions taken during the trial of said case were embodied in a bill of exceptions, which was duly prosecuted, and is now before this court. No motion for a new trial was made.

As appears from the testimony taken at the trial, the plaintiff and a friend named Pietz had been in Newport for the day. They returned to Pawtucket by steamer, and after landing at the dock a little later than seven o’clock they went to a lunch room, where they had sandwiches and coffee, after which they proceeded in a northerly direction up Broad Street. The testimony of the plaintiff is that as they neared the station they began to hurry, and Pietz went in advance of Raczelowski. They crossed the platform which runs east and west and to the south of the tracks, between the lunch-cart, so called, and the gateman’s shanty. After Pietz left the plaintiff he did not see him again until after the accident. The intention of both was to take the 7:40 P. M. train for Providence. As they came up Broad .Street this train was at the station, headed west and on the farther of the two tracks from them as they approached. Broad Street crosses the railroad at grade, and the crossing was protected by gates on each side. Pietz knew nothing about the position of these gates, and the plaintiff says that he didn’t pay attention to the gates as he was in a hurry to get the train. It is nowhere denied that they were down, and there was ample testimony that they were down with lanterns attached. There were many people on the platform. The station building containing the ticket office was shown to be on the northerly side of the tracks, while there was upon the southerly side of the tracks a baggage room with porch in front. At the extreme west end of the building commonly termed the baggage room was an express office, on the front of which was a door and a few feet to the east a window.

Broad Street crossing, so called, was covered with planking and running from the easterly end of this planking, easterly for a distance of 500 feet was an iron fence. This was 4 feet 7 % inches in height above the top of the rail, and was between the two tracks. This fence was constructed of iron wire, about one-half inch in diameter, and was painted a dark color. This fence was begun between the 20th and 25th of June, 1912, and completed July 11th or 12th. The spaces between posts were eight feet in length.

Dexter Street crossing was shown to be to the west of Broad Street and 467 feet from it.

On the westerly side of Broad Street, there were two electric lights near the crossing. On the south the pole was 96 feet from the end of the fence. Both lights were attached to yard arms, which projected into the street, and both were a high type of light. There were electric lights suspended from the porch of the station proper, and also from the porch in front of the baggage room. In front of the baggage room these lights were 26 feet apart. From the nearest baggage room light to the westerly end of the fence was a distance of 50 feet, while from the third post to the first baggage room light was 29 feet. The station lights were all 25 watt Tungsten lamps, and, according to witness, Frank W. Dunne, “the last thing out in lighting. ”

It appeared that prior to the building of the fence it was customary under an operating rule of the defendant company for a northbound train to wait to the west of Broad Street crossing if there was a southbound train discharging or taking on passengers at the station. It also appeared that after the installation of the inter-track fence trains passed each other in the station, the rule being then abrogated.

The plaintiff, according to his own testimony, had not been in Pawtucket since Decoration Day of the same year. Pietz admits that-as he reached the platform he was walking pretty fast; that he did not see the train which was approaching on the northbound track; and that when he was near to the Providence train he saw the fence. Raczelowski, on the other hand, when he stepped from the street to the curbstone, looked toward Dexter Street and saw a train coming, but slowing down as he said. He walked a few feet, and when just past the shanty looked again and saw the train 100 feet the other side of Broad Street crossing, still coming, but slowing down. Without looking again at the approaching train he then passed over the platform and into the track, and was within arm’s length of the fence when he heard the whistle of the locomotive, turned and saw it very near him, turned back across the track, and was struck by the right-hand side of the engine of the Shore Line train and severely injured.

The plaintiff claims that no notice was given him of the installation of an inter-track fence and of the consequent change of boarding a southbound train from the station side only; that in crossing the first track he relied upon the rule formerly in force, which required that trains should not pass each other in a station; and that he had no notice of a change of rule in this particular.

The defendant contends that it was unnecessary and impracticable to give notice of such a change in stational structure and facilities more than is given by the structures themselves; that a former rule requiring one train to wait before passing through a station until another had left it was an operating rule only and one on which, the public could not rely, and that because of that fact, no notice to the public was necessary when the rule was changed. Further, that the accident was due to the gross carelessness of the plaintiff, who stepped in front of a train which, when last seen, was steadily coming toward him.

Various exceptions were taken by the defendant during the trial of the case, but in the view which this court takes of the evidence it will be necessary to notice only the 47th exception which was taken to the refusal of the justice who tried the case to direct a verdict for the defendant, at the close of all the evidence.

(1) We think the plaintiff, upon all of the evidence, and particularly upon his own evidence was clearly guilty of contributory negligence as a matter of law, and that the motion for direction of a verdict for the defendant should have been granted. It clearly appears from the plaintiff’s own testimony that before he entered the station platform and while he was still on the street he looked westerly and saw the train (which afterward struck him) approaching, but he thought it was slowing down; that as soon as he entered upon the station platform he looked again toward the moving train and saw it still approaching; he was then about 15 or 20 feet from the track upon which the approaching train was running and could easily have observed the train to see whether it came to a stop; but without further observation, hurrying to catch his train on the further side of the station and intent only thereon, at a rapid pace which he says was neither walking nor running, following Pietz, he entered upon the track in front of the moving train in such close proximity to the front of the locomotive that when he had gone about the width of the track (or less than five feet) so that he was within arm’s length of the fence, he heard the whistle of the engine, looked up and saw the engine “almost on top” of him, turned back and attempted to get back to the platform and was immediately struck, knocked down, dragged and severely injured. That the gate across the Broad Street entrance to the crossing was down at the time of the accident with lanterns lighted and hanging from the bars is undisputed; plaintiff had no difficulty in seeing where he was walking and saw the rails; it is quite evident that he was in a great hurry, intent only on getting his train, that he did not reach the fence, and that the fence was in no sense the proximate cause of his accident.

It is noteworthy that this same crossing was the scene of an accident somewhat similar to that in the case at bar, where the same rule as to stopping a train outside the station when another train was standing in the station to receive or discharge passengers was invoked in favor of the plaintiff’s deceased husband. In the case of Chaffee v. Old Colony R. R. Co., 17 R. I. 658 (decided in 1892), the essential facts were somewhat similar. On September 6, 1890, William T. Chaffee, who was a passenger on a train going to Providence, which train stopped at Pawtucket and was standing on the southbound track, left his train and went to the baggage room across the northbound track; he there delayed until just as his train was about to leave for Providence, and then in a great hurry, without looking to see whether a train was coming, crossed the northbound track in the attempt to board his train on the southbound track, and in some way not quite clearly established he was killed by a train which was coming on the northbound track. It appeared that the approaching train could have been seen by the deceased for several hundred feet before it reached the station. At p. 660, the court says: “If it be conceded for the purpose of the present inquiry that the defendant was guilty of negligence in running its northbound train into the station before the southbound train had entirely cleared it, we nevertheless do not think the verdict can be sustained.

“If the deceased, in his attempt to board the southbound train when it was in motion, lost his footing, and, falling to the ground, received his injury in consequence of being struck by the steps or wheel of a car upon the train he was endeavoring to board, the plaintiff cannot recover, for the testimony shows no negligence on the part of the defendant's servants in the starting or management of that train.

“Nor do we think the plaintiff is entitled to recover if the deceased was struck by the engine of the incoming train, and received the injury which caused his death by being thrown by that engine against a car of the outgoing train. Ordinary prudence requires one who is about to cross a railroad track to use his senses, to look, to listen, for the purpose of ascertaining whether he can cross in safety. This, as was said in Ormsbee v. Boston & Providence R. R. Corp., 14 R. I. 102, is an established rule, both of law and experience.”

“A rule prescribed by the New York, Providence & Boston R. R. Co. and the defendant for the government of their employees, with reference to the station at Pawtucket, is to the effect that if a train on the southbound track is standing at, or has not entirely passed, the station, a northbound train shall stop south of Broad Street, and allow the other train to clear the station before proceeding.

“The plaintiff suggests that it is fair to presume that the deceased knew of this rule, and relied upon the supposition that it would not be violated. The rule was made for the government of the employees of the railroad companies in the management of trains, not for the guidance of the public: The testimony does not show that it was generally known to the public or to the deceased. But even if it could be shown that he did know of it, and relied upon its observance by the defendant's employees, we do not think such knowledge and reliance would absolve him from the duty of exercising ordinary care for his own protection; and the southbound train being in motion, and the implied assurance of the defendant that he might safely be upon the track being withdrawn, ordinary care required him to look to see that no train was approaching which would endanger his safety.

“Inasmuch, therefore, as the deceased, by reason of his entire absorption in his purpose and attempt to get on the moving train, failed to look to see whether a train was approaching before crossing the northbound track, or before stepping back toward it or on it, while waiting for the end of the car which he was intending to board to come along, and paid no attention to the warning shouts of others who saw his danger as he himself might have seen had he looked, we think he was guilty of contributory negligence, and that the plaintiff is not entitled to recover. ”

We think the principles of law set forth in the above case are fully applicable to the case at bar. In view of the plaintiff’s reckless conduct in entering upon the track so near the approaching train, it was quite immaterial that the defendant had changed, without notice to him its rule regarding the passing of trains in the Pawtucket station after building the intertrack fence.

In Wheelwright v. Bos. & A. R. Co., 135 Mass. 225, the plaintiff in order to take an approaching train crossed a track relying upon the custom of two trains not passing in the station. She was struck and injured. The court held that the rule of the company did not excuse her from taking precautions for her own safety; at p. 230, the court said: “In the case at bar, the accident happened in broad daylight, between ten and eleven o’clock in the forenoon; the track was straight for a quarter of a mile easterly from the place where the plaintiff stepped upon it; and there was nothing to obstruct her view of the track for that distance, from any point on the platform within five feet of its southern edge. The conclusion is irresistible, that the plaintiff’s attention was so far occupied, by the approach of the train she was to take, that she omitted to look along the track she was to cross, and stepped directly in front of the train which struck her. Her knowledge of the rules of the defendant, that trains should not pass each other at stations, or follow each other within five minutes, did not, under the facts in this case, excuse her from taking the simple and obvious precaution of looking to see what might be coming on the track she was stepping upon.”

In Connolly v. N. Y., N. H. & H. R. R. Co., 158 Mass. 8, it appears that plaintiff after leaving one train at Readville station was crossing a track and was struck by another train. This passing of trains in a station was contrary to defendant’s rule, but the court held that “It was not passed for the purpose of conveying any assurance to him and did not purport to convey any.” And after fully discussing the facts of the ■case and the conduct of the plaintiff, the court says, p. 10: “So the question comes down to this, — whether a person is warranted in assuming that trains will not cross each other at a station, and in shutting his eyes and walking ahead ■on that assumption. That question was answered in Debbins v. Old Colony R. R., 154 Mass. 402.

In Debbins v. Old Colony Railroad Company, supra, the facts were much like those in the present case. Plaintiff came to the station and saw his train on the farther track. The street crossing gate was closed. Across the tracks and to his right was the station proper. On plaintiff’s side was a waiting shed. Between the station and the shed was planking. The train extended across the planking and the train gates on plaintiff’s side were closed. Plaintiff passed gate on the sidewalk, which was not obstructed by it, and began to cross the nearer track diagonally to go around the rear of the train. He glanced up the track, but because of steam and smoke, failed to see an oncoming train which struck him. There was no headlight and there was evidence that train was not ringing its bell or sounding its whistle. ’Gateman was standing in middle of highway with his back to plaintiff. It was held that plaintiff was guilty of willful negligence. “He elected to go forward on the strength of a glance when the train was so close upon him as to run him down before he could cross the track. ”... “But here the defendant hardly can be said to have invited the plaintiff to cross the track, seeing that its only act was to shut the gate in his face. ”

In Rich v. Evansville & Terre Haute R. R. Co., 31 Ind. App. 10, the court held in affirming judgment for defendant upon demurrer to complaint, in which, it appeared that plaintiff’s deceased drove a team upon a track relying upon a custom of having this train take a siding, and was killed, that the omission of the appellant to sidetrack the train in question was not negligence.

In Cleary v. Phil., etc., R. Co., 140 Pa. St. 19, the court held that there was no error in nonsuiting plaintiff, when it appeared that plaintiff’s husband started to cross a road when the gates were down and struck by one train while his attention was upon another. The court says, p. 21: "With the safety gates down, he started to cross the road at a point where there are four tracks. While he was looking at one train he was struck by another. He knew that the lowering, of the gates was a danger signal; that it signified the occupation of the tracks by passing trains. We cannot assent to the proposition that the gates were intended merely to warn vehicles; on the contrary they are equally a warning to foot passengers; the principal difference being that when down a vehicle cannot pass, while a foot passenger, if sufficiently foolhardy, may do so. It was also a mistake to suppose the gates were down on account of a particular train. They were down for all trains, moving or passing at the time. The deceased thought there was but one train. In this he was. unfortunately mistaken; there were two trains, and the mistake cost him his life. He stepped in front of a moving; train in broad daylight. Much as the accident is to be-regretted, we cannot hold the company responsible. It was. guilty of no negligence. ”

In Granger, Adm’r, v. Boston & Albany R. R. Co., and Chipman, Adm’r, v. Boston & Albany R. R. Co., 146 Mass. 276, the court found plaintiffs’ intestates were guilty of negligence in attempting to pass over a crossing when the-gates were down. In these cases and in the case at bar there was a total lack of invitation on the part of the defendants, and utter recklessness on the part of the plaintiffs.

(2) In the case at bar the negligence of the plaintiff is clear,, upon undisputed facts. The action of the plaintiff in running upon the track was not the act of a person of ■ordinary prudence. When the negligence of the plaintiff is of that character, as well as in the case where no negligence on the part of the defendant has been shown, the Rhode Island courts through a long series of opinions have said that there was nothing to go to the jury. Clarke v. R. I. Electric Lighting Co., 16 R. I. 463; Chaffee v. Old Colony R. R. Co., 17 R. I. 658; Gaffney v. The J. O. Inman Mfg. Co., 18 R. I. 781; Nicholas v. George H. Peck, T. Tr., 20 R. I. 533; Nicholas v. George H. Peck, T. Tr., 21 R. I. 404; Judge, Adm’x, v. Narragansett Electric Lighting Company, 23 R. I. 208; Galloshaw v. The Lonsdale Co., 25 R. I. 383; McGoran, Ex’x, v. N. Y., N. H. & H. R. R. Co., 25 R. I. 387; Cottrell, Ad’m, v. Pawtucket St. Ry. Co., 27 R. I. 565; Armington, Adm’x, v. Providence Ice Company, 33 R. I. 484.

The defendant’s motion for the direction of a verdict in its favor should have been granted, the refusal thereof was error, and the defendant’s exception 47 is sustained. The other exceptions therefore need not be discussed.

The court is of the opinion that the case should be remitted to the Superior Court with direction to enter its judgment for defendant. The plaintiff will have an opportunity to show cause why this order should not be made on Tuesday, July 6th, 1915, at 10 o’clock in the forenoon.