Henavie v. New York Central & Hudson River Railroad

Upon the trial of this action evidence was given tending to establish the following facts: Eleventh avenue and Forty-fifth street, in the city of Hew York, cross each other substantially at right angles. In the avenue as it crosses Forty-fifth street, and on an even grade therewith, are two railroad tracks belonging to the defendant, upon which engines are run propelled by steam On the 5th of April, 1895, at about half-past nine in the evening, on a clear night, the plaintiff’s intestate, 32 years of age and in the full possession of his faculties so far as appears, started to walk across the avenue on the crosswalk extending from the southeast to the southwest corner of the two streets. It was 22.3 feet from the curbstone where he started to the first rail of the nearest track. lie lived in the neighborhood and was familiar with the crossing.

At this time an engine, attached to a few freight cars, was either standing still at Forty-fourth street, as two witnesses stated, or was backing on the south 'track from Forty-fourth

At the close of the evidence for' the plaintiff the court dismissed his complaint and ordered his exceptions to be heard in the first instance by the Appellate Division, where they were overruled and the motion for a new trial was denied. From the judgment entered accordingly the plaintiff, after obtaining permission, appealed to this court.

There was a conflict in the evidence as to whether the bell on the engine which ran over the plaintiff’s intestate was ringing or not. The accident was seen by two witnesses, one standing at the northeast corner of the crossing, who, after stating that he observed the train, testified that he heard no noise coming from the engine, and that he did not hear any bell rung; the other, who was walking between Forty-fifth and Forty-sixth streets, testified that he observed the train and that no bell was rung. On his cross-examination, after stating that he was positive that no bell was rung, the record discloses the following: “ Q. How are you sure of that ? A. I did not hear it ? Q. That is all you mean to say, you did not hear it ? A. I did not hear it. Q. That is what you mean to say when

A witness, shown to have been in a position to hear, who testifies that he observed the engine but did not hear the bell ring, furnishes some evidence that the bell was not ringing, and if he is positive that the bell was not rung, he furnishes strong evidence that the bell was not ringing. The evidence of the witness in this case, who was positive upon the subject, was not materially affected by his cross-examination, for while he said he did not hear the bell, when asked if that was all he meant, twice answered 'that it was not rung. The answers were not inconsistent. We assume, therefore, that the jury might ¡iroperly have found that the bell was not rung.

A railroad company which runs a locomotive, rapidly, in the night time, upon a public street in a populous city, crossing other streets at grade, with no gate or flagman to protect the public and without taking any 2>recaution to warn travelers by bell, whistle or otherwise, except by means of its headlight, may properly be found guilty of neglecting its duty to operate its cars with the care and caution required by the circumstances. (Dy er v. Erie Ry. Co., 71 N. Y. 228 ; Houghkirk v. Delaware & Hudson Canal Co., 92 N. Y. 219 ; Thompson v. N. Y. C. & H. R. R. R. Co., 110 N. Y. 636 ; Vandewater v. N. Y. & N. E. R. R. Co., 135 N. Y. 583 , 588.)

W hether the decedent was conclusively shown to have been guilty of contributory negligence depends upon what occurred in an instant of time. He looked in both directions when lie started to cross, and when he was half way to the nearest rail he looked in both directions again. Therefore, in order to

For these reasons we think the judgment should be reversed and a new trial granted, with costs to abide the event.

Parker, Oh. J., Bartlett, Martin, Cullen and Werner, J J., concur; Gray, J., not sitting.

Judgment reversed, etc.