May v. New York Cent. & H. R. Railroad

The plaintiff’s intestate, 18 years old and experienced, was driving a wagonette westward across defendant’s tracks at 12:37 o’clock a. m. on February 23d, when the wagon aft of the' whiffletrees was struck by a south-bound train. The horses with harness released escaped uninjured. The driver and two persons sitting with him, and two of the three persons on each of the side seats in rear of the driver were killed, while two persons, who were sitting, one Palmer in the last seat on the south side, and one Miss Bird, who was sitting in the last seat on the north side, escaped alive, but injured. The same accident was before this court in Singer v. New York Central & Hudson River Railroad Co., 116 N. Y. Supp. 294 , which related to the death of one of the passengers. In that case the question of defendant’s negligence must have been similar to that now presented, and need not be discussed, although in the present instance it was properly submitted to the jury. But the question of the driver’s negligence is presented at this time, and differs from that arising in the case of the passenger. ■

The care required of the driver is not lessened by the fact of his death; but, on account of the absence of his evidence, the jury is permitted to use presumptions and inferences and to permit evidence adduced to have probative force, whereon a verdict may be found for the plaintiff and sustained. There is evidence that for some distance before reaching the easterly rail of the north-bound track there were intermitting obstructions. The available seeing spaces varied in the length of view permitted. The driver, when he was at considerable distances from the track, could, had he made fortunate selection of places therefor, or had he looked with continued search, have seen the train, and he could have followed it appearing and disappearing, but always approaching. But he might have looked somewhat frequently without discovering it on account of the varieties of obstruction. The evidence of the survivor Palmer is:

“He bent forward this way, and turned his head this way, looking up and down the track. The horses kept going just the same. So’far as I know, I don’t remember any change in the gait There was no change in the speed or the horses. They were going just the same with the driver with his head ' out and looking up and down the track. At that time I was about hitting the first rail, that it is the rail of the up track, I don’t know. The first rail I hit, that is the first rail of the up track. Up to that time the driver had not, so far as I could observe, either looked or listened for the approach of a train, before we went on the crossing. He looked at that time, that is all. He looked that once. He didn’t whip his horses up.”

When the driver looked at that point, the train was right before his face. If there was not evidence of his looking at a place where to look was to see the train, an argument in vindication of his care might be attempted on account of the obstructions that attended his earlier progress towards the track and the evidence that the gate was up. But what can be said for him looking as he is shown to have looked, with the headlight of the engine glowing in full view? Assuming that he looked and saw the train, which seems a necessary presumption, what can justify his driving in front of the locomotive? Can it be said that he looked and discovered the train when it was too late to stop or to turn aside? It must be supposed that he looked at a point where, if he saw the train, he could avoid it. He seems to have judged that it