O'Brien v. Erie Railroad

This action was brought under the statute and under section 42a of the Railroad Law, known as the Barnes Act, to recover damages for the death of John O’Brien, and has been twice tried. Upon the first trial a nonsuit was granted, and the judgment entered thereon was upon appeal reversed and a new trial granted. Upon this trial plaintiff recovered a verdict, which was affirmed by a divided court, and defendant now appeals to this court.

Plaintiff’s intestate was an employee of the defendant in the capacity of foreman over a body of men, including one Vitalii, who were engaged in the work of repairing the tracks and roadbed of the defendant company near a station known as Turners, situate between Paterson, N. J., and Port Jervis,N. Y.

About ten o’clock in the morning of June 27, 1908, an express train bound west on track number one, which was not due to stop at Turners Station, approached the spot where the accident occurred at a speed of fifty miles an hour. . East of Turners Station there is a curve in the tracks. A locomotive traveling westerly around the curve in question would be visible from where the accident occurred for several hundred feet. The evidence of

It was asserted by the plaintiff that defendant was chargeable with negligence by reason of a failure of the engineer to give warning by the usual signals of the whistle and bell; that he failed to maintain an outlook or reduce the speed of the train while rounding the curve, and in failing to see Vitalii on the tracjc.

On behalf of the defendant it was claimed that the whistle was sounded at the whistling post east of the curve; that the automatic bell upon the locomotive was ringing, and continued to ring down to a point west of the place where the accident occurred, and that the vision of the engineer was limited in rounding the curve to a distance of about one hundred fifty feet.

The questions of negligence and contributory negligence were submitted to the jury.

The trial justice charged the jury “that it was the duty of the engineer in the exercise of due care to maintain a cautious and earnest outlook upon the track ahead, and if the track ahead was such a place as a curve where his vision was limited much beyond the ordinary vision on the straig’htaway track ahead, it was especially his duty to be on the alert and to have his locomotive under

Counsel for defendant took exception to that portion of the charge “ that instructed the jury as the place was on a curve that it was the especial duty of the engineer at that time to have a vigilant outlook.”

Counsel for the plaintiff stated: “ I thought your honor said, or will say, that the jury could find that the curve added to it instead of making it an instruction of law, therefore the jury is the judge of the standard of care.

“The Court: I will modify the charge accordingly, that the jury are at liberty to find it, but not compelled to find it. ”

An exception was taken by the defendant.

At the request of counsel for the defendant, the justice instructed the jury that the duty of the engineer to make observations was fulfilled when he looked and made such observations as the character of the cab and the location where he was permitted.

Counsel for defendant excepted to so much of the charge to the jury as stated “that it was the duty of the engineer to give reasonable warning of approach upon the curve and if he had reason to expect men upon the curve to have his engine under control and slow down if necessary. ” The court, by consent of counsel for plaintiff, modified the charge by stating “that the jury under the undisputed circumstances in this case with reference to the speed of the train are at liberty to find that tha

Counsel for defendant took further exception to so much of the charge “ that instructed the jury that it was the duty of the engineer to keep a continuous and earnest lookout ahead.” The trial justice thereupon stated, at the suggestion of the plaintiff’s counsel: “ I modify that by saying that the jury may find that this duty of ordinary care required that, but not that they are compelled to so find.” An exception was taken by counsel for defendant to the modification as well as to the original charge.

We think the instruction to the jury was error. In Chrystal v. Troy & Boston Railroad Company ( 105 N. Y. 164 , 169, 170), an action brought to recover for the death of an infant who had strayed upon the railroad track, Judge Earl wrote:

“ This is the first case that has come before this court, and, so far as we know, before any court in this state, wherein must be defined the responsibilities of a steam railroad company, not otherwise in fault, to one lawfully upon its track, for not seeing him and stopping its train in time to avoid injuring him. * * *

“ An engineer is not bound to stop his train the moment he sees some living object upon the track. He has the right, in broad daylight, when his train is perfectly visible and its approach must be heard and known, at least in the first instance, to assume that the object, whatever it is, will leave the track in time to escape injury. * * * Beasonable care in the management of trains which must make their time between stations, and have the right of way, does not require more.”

The case referred to was again in this court. ( 124 N. Y. 519 , 522; 141 N. Y. 572 .) The instructions of the trial justice to- the jury in this case were in conflict with that decision. Assuming that the engineer in charge of the train saw Vitalii on the track, he would have the right

For the reasons assigned the judgment must be reversed and a new trial ordered, costs to abide the event.

Cullen, Ch. J., Werner, Hiscock, Chase, Collin and Cuddeback, JJ., concur.

Judgment reversed, etc.