Ward v. New York Central & Hudson River Railroad

78 A.D. 402, 80 N.Y.S. 161

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1903
• Status: Published

Opinions

Ingraham, J.:

Upon the trial of this action the court submitted special questions to the jury. The first was as to the defendant’s negligence, which the jury answered in the affirmative; second, as to the freedom of the deceased from contributory negligence, which was also answered in the affirmative, and by the answer to the third question .the jury fixed the damages caused to the next of kin of the deceased at $7,833.33. Before these questions were submitted to the jury the defendant had made a motion to dismiss the complaint, which motion the court reserved until after the jury answered the special questions submitted to them, and subsequently dismissed the complaint, and it is an appeal from the judgment entered upon this dismissal of the complaint that is now before us.

We think the question as to the negligence of the defendant was properly submitted to the jury, and the only question presented upon this appeal is whether the evidence as to the freedom of the deceased from contributory negligence was sufficient to sustain the finding of the jury in that regard. On the 30th day of November, 1897, at about fifteen minutes before ten o’clock in the morning, the deceased was crossing Eagle avenue, in the twenty-third ward in the city of New York, at One Hundred and Forty-ninth street, and was there struck by a train of the defendant and killed. The only witness called by the plaintiff who saw the accident was one Monaghan, who testified that he was at the time driving a truck down One Hundred and Forty-ninth street, west of Eagle avenue, in which the tracks of the defendant’s road were laid; that as he drove down One Hundred and Forty-ninth street he saw the deceased standing on the corner of Eagle avenue and One Hundred and Forty-ninth street, on the westerly side of Eagle avenue; that while there, the deceased “ looked apparently up the track, in the direction of where the train comes out. * * * He turned and looked that way, and then he started to walk down towards the track, on the north side of 149th street. * * * I did not see him until the locomotive came right out of the cut and hit him and threw him on the opposite track and cut him right in half; ” that it was about twenty-five or thirty feet from where the deceased was standing to the track when he looked; that there were some telegraph poles which in a way obstructed the witness’ view from the point at which he was when he saw the deceased apparently look up the track; that there was no whistle blown or bell rung from the locomotive as it approached, and that the train was going about five or six miles an hour at the time; that after the accident the train stopped about 150 or 200 feet beyond the north side of One Hundred and Forty-ninth street; that it was a windy, gusty day and the wind was blowing a good deal of dust; that there were no gates at the crossing and no signboard at that time; that the witness had seen Ward in this locality before. Upon cross-examination the witness said that he saw the deceased after he looked when he was about half way between the track and the corner; that he was then walking towards the track looking straight ahead; that as the locomotive came out of the cut the witness checked his horses to allow the train to pass, and he was thus engaged attending to his horses until the locomotive was in front of him, when he looked around and saw the deceased just as the engine struck him; that the witness was at that time about 75 feet from the track, and that the deceased did not look towards the cut after he left the side of Eagle avenue until he was struck ; that the witness was looking for-a train as he approached the tracks; that he had no trouble in seeing the approaching locomotive in time to stop; that the witness had frequently seen Ward in this locality walking along One Hundred and Forty-ninth street near these railroad tracks and cross them; that the witness was about 100 feet from the track when he first saw the deceased looking up the track and that he looked up the track about the same time and did not see any train. A civil engineer was called by the defendant who testified that he measured the distance from a point on Eagle avenue at the crosswalk to the place where a train would be visible coming out of this cut and that it was 361 feet; that he also measured the distance from the northeast corner of Eagle avenue and One Hundred and Forty-ninth street to the first rail of the defendant’s track on the northerly crosswalk of One Hundred and Forty-ninth street, and that it was 51 feet; that standing on the corner of One Hundred and Forty-ninth street and Eagle avenue he could see the entrance to the cut which was 361 feet from that point, and that there were no telegraph poles which would obstruct the view of a locomotive or train of cars from that point. This testimony is undisputed and I think the court was justified in accepting the measurements made by the engineer as the distance from the point where the deceased stood at the time he was said to have looked up the track and the point at which a locomotive could be seen coming from the cut. There was no evidence to justify any other finding as to this distance and also the distance from the point where the deceased stood when he looked to the nearest track of the defendant’s road as 51 feet. At that time, when the deceased was said to have looked, Monaghan was about 100 feet from the track and, therefore, at a considerable distance from the deceased, and the distance that he could see up the track which he estimates at from 150 to 200 feet was probably more limited than the distance that the deceased could see. Whether or not the deceased at the time he looked did see the locomotive does not appear, but the evidence of all the witnesses is, that from the time the deceased apparently looked as he stood at the corner of the street until he was struck, he did not look again and took no precaution to avoid being run over. The train was in full sight of the deceased for a distance of at least 361 feet, and during the time that the train was coming that distance if the deceased had looked he must have seen it. He was apparently struck by the locomotive as he stepped upon the track, and it is entirely evident that if he had looked during the time that the train was moving 361 feet he must have seen the train. There was no evidence that his eyesight was defective, that he was not in full possession of his faculties, or that anything could have obstructed his view of the train if he had looked for it. Can it be said that an individual crossing a steam railroad track, who thus approaches and crosses the track without doing anything to ascertain whether or not a train was approaching, is not negligent % It seems to me that the established rule in this State is that such an attempt to cross the track of a steam railroad is negligence. This question has been presented to the Court of Appeals in many cases, and I call attention to but two or three of them where a rule has been laid down which seems to conclusively establish that such an act on the part of an individual is not such care as the law requires to entitle a person injured to recover. In Woodard v. N. Y., L. E. & W. R. R. Co. (106 N. Y. 369), at a point along the road upon which the plaintiff was proceeding 31-|- feet from the intersection of the street the rails of a switch could be seen to the west a distance of 57 feet; when within 10 feet of the track it could be seen a distance west of 137 feet. In that case the plaintiff’s intestate and one Phelps approached the crossing and the deceased was struck at the southerly rail of the switch when almost across it by one of the coal cars of the defendant’s road moving by its own momentum. The accident occurred in the middle of a bright, clear day, when nothing existed to hinder or obstruct the sight, when the injured man was on foot and could have stopped at any instant and when the merest glance along the switch to the west would have developed the approaching danger, and the court said that “it is absolutely certain that at any time when within ten or fifteen feet deceased had only to look and pause to be safe, * * * so that the facts make it absolutely certain that Woodard and Phelps either looked, and, seeing the car coming, undertook to cross in front of it, or did not look, when that was their duty, and went blindly upon the track, taking the chances of what might occur. * * * The case is one where ordinary prudence and care was not shown or inferable, and for which no excuse or palliation can be. given.” In Cullen v. D. & H. Canal Co. (113 N. Y. 667) the deceased, driving a horse attached to a wagon, approached the crossing in the direction from which the engine was approaching until he got upon the tracks. It appeared that from a point 70 feet from the crossing the track to the south could have been seen for 146 feet by the deceased, if he had looked, and 50 feet from the crossing he could have seen it for 220 feet. The court upheld a nonsuit, stating that the duty which rests upon a traveler in approaching a railroad to look and listen was not discharged by the intestate, the court saying: “ There is no evidence that the intestate did look or listen. On the contrary, the strong inference from the evidence is that he neither looked nor listened, and there is no reasonable ground for the supposition that he was in a position where he had to choose between imminent j>erils and that he could not have escaped one without encountering the other.” In Wiwirowski v. L. S. & M. S. R. Co. (124 N. Y. 420) the court in reversing a judgment for the plaintiff held that “ they were in a known place of danger and had they exercised their senses under the circumstances it is at least probable that they would have both seen and heard the approaching train. Freedom from contributory negligence cannot be assumed.” In Wieland v. Del. & Hudson Canal Co. (167 N. Y. 19) it appeared that about 30 feet from the track where the plaintiff’s intestate was killed the track was plainly visible from the west for a distance of 150 to 200 feet and that at this point a train coming from the west through the cut could not be heard until it came within 150 or 200 feet of the crossing; that the train with which the decedent collided was moving at the rate of fifty or sixty miles an hour; that the deceased when approaching this track was bound to look and listen and nothing could excuse the absence of this degree of care or justify the lack of evidence tending to show that it was exercised, except proof that under the conditions which existed it would have been unavailing; that the deceased if he. had looked or listened could have seen or heard the approaching train, and when it was shown that the conditions were such that the decedent by the exercise of his faculties of sight and hearing might have averted the disaster, it then became necessary for the plaintiff to go a step further and give some affirmative evidence from which a jury could have found that the decedent was free from contributory negligence. In Hudson v. Erie Railroad Company (61 App. Div. 134) we held that the plaintiff was guilty of contributory negligence in a case much like the one under consideration. It there appeared that the plaintiff walked from a point from 25 to 30 feet from the track without looking or listening for an approaching train; that he testified that it took him about seven and a half seconds to walk from the place from where he looked toward the west to the track itself, and that when about 10 or 12 feet from the track he hesitated one or two seconds and that it was ten or eleven seconds from the time he started to walk to the track until he was upon it, the plaintiff thus walking upon the track without taking any care to ascertain whether -or not there was any approaching train which would render his crossing the track dangerous, and we held there was such negligence as precluded the plaintiff from recovering, stating the rule that *{ plaintiff was bound to look when he was in such a situation that he could see whether there was a train in sight which would prevent his crossing the track in safety. Looking before he reached the point that would give him that information, was not performing the duty resting upon him and which he was bound to perform before he could be said to be free from contributory negligence.” We think this case is within the principles established in the cases to which attention has been called and that the court below was justified in dismissing the complaint upon the ground that the plaintiff had not sustained the burden of proof that the deceased was free from negligence contributing to the injury.

It follows that the judgment appealed from should be affirmed,, with costs.

Van Bbünt, P. J., and McLaughlin, J., concurred; O’Brien and Hatch,'JJ., dissented.