Smetanka v. New York Cent. & H. R. R. Co.

Plaintiff’s intestate was killed by a train while he was attempting to cross the defendant’s track on foot. The accident did not occur at a highway crossing, but midway between two highway crossings, about 600 feet apart, at each of which defendant maintained a flagman. The defendant’s two-track railroad runs northerly and southerly at this point, and on the easterly side between these highways is a high cliff, scattered on the face of which are 10 houses, the inhabitants of which, instead of going to either highway, have been in the habit of climbing down the cliff and crossing the tracks at places between the streets. On the west of the tracks there is a highway, and between them and the highway defendant has maintained a fence. Some five or six years ago the fence, being dilapidated, was rebuilt, and an opening between posts in three places was left, through which foot passengers might pass by stepping over the lower board. The record does not disclose whether these openings were left by defendant’s carpenters when the fence was built or made shortly thereafter, but they have existed since the new fence was erected. Plaintiff lived on the cliff, and the deceased boarded with him, and both worked in a foundry which was west of defendant’s railroad tracks and up the parallel highway. The accident happened about 5 o’clock in the afternoon on the 29th of March, and hence in daylight. Plaintiff and the deceased were coming from work at the foundry, and passed the first highway and came to the middle opening in the fence, and plaintiff testifies that the deceased, who was just ahead of him, looked both ways before stepping through the opening, and waited for a train to pass on the near track, and then crossed that track, and was hit by one coming from an opposite direction and killed. The train which first passed left steam and smoke which enveloped the deceased, and this is given as an excuse why he did not observe the train which hit him, and which except for the smoke could have been seen as it approached from 400 to 600 feet. The theory of the plaintiff upon the trial which resulted in a verdict in his favor was that the defendant had permitted pedestrians to cross the tracks at this place for so long a time that it amounted to a license and permission so to do; and hence that a duty was imposed upon defendant in respect to such persons to exercise care in the movement of its trains at that point, and that the deceased was shown to have used due care because he looked and listened and waited for one train to pass before attempting to cross. The plaintiff predicates defendant’s negligence upon proof that no whistle was sounded or bell rung.

It is -true that the defendant either made or permitted to exist the openings in the fence, but its reasonable answer to this is that from experience the fence would be torn down by the few people who desired to cross, and hence it was better to leave openings. Even this act of the defendant did not make the footpath a public crossing, and impose upon it the active duty of being on the lookout for pedestrians, such as exists respecting a public highway. There is no claim that the defendant wantonly injured the deceased, or failed to do what it ought when its engineer observed his peril. Nor was the train going at a reckless rate of speed, for it had only got under way after stopping at the Spuyten Duyvil Station. But, if it be said that there was some duty of care which the defendant omitted, still we think the deceased was not shown free from contributory negligence. Smoke and steam had settled down upon him after the first train passed. Notwithstanding this obstruction to his vision, he proceeded to cross the tracks. Under such condition, it was his duty to wait until the smoke had disappeared. Heaney v. L. I. R. R. Co., 112 N. Y. 122 , 19 N. E. 422 Keller v. Erie R. R. Co., 183 N. Y. 67 , 75 N.

The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.