Fitzgerald v. Erie R.

When he left his home, No. 5, a fast passenger train from New York west bound, stood on the north or west-bound track, headed west, near the Carrollton station. Intestate was observed to start west, on the east-bound or south track; that is, against the so-called current of traffic. After his departure, No. 5 backed up to a cross-over switch, onto the east-bound track, and then proceeded west on the east-bound track. Some' time after the departure of No. 5, the body of intestate was discovered lying beside the east-bound track, with injuries bn the rear left side of the body and with a gash in the forehead, filled with cinders. No other train had passed, in the meantime, on defendant’s road. Apparently, no one saw the accident. The morning was rather foggy, and the slight evidence in that connection indicates that the range of vision was about 300 to 400 feet. There is no proof of the speed of the train, other than the characterization of various witnesses that it was running fast, that it was a fast passenger train, and that it was behind its schedule. It further appears that a freight train passed the place of accident, upon the B. R. & P. at about the time of the accident. There is evidence from which it may be inferred that No. 5 gave no signals of any kind from the time it left Carrollton until after the accident. The train did not stop after the accident, and from such fact it may be inferred that the engineer did not know that he had struck intestate.

A nonsuit was granted, and its correctness depends upon the issue of the negligence of the defendant, as all other questions upon this record were clearly for the jury.

The determination of defendant’s negligence must depend primarily upon the duty, if any, owing to intestate by defendant in connection with the operation of this train. In this connection, it is to be conceded that defendant had a perfect right to operate this train “left-handed” against the traffic. Its duty to intestate, in some degree, must, however, be conceded. Intestate does not stand in the position of a trespasser, with no right or duty to perform on the track.

[1] To a trespasser the defendant would owe no further duty than not to willfully injure him. But with this man necessarily upon the track, in the performance of his duties, clearly some degree of care was to be exercised not to injure him. The situation was not an emergency. It was the time of day when it was to be anticipated that employés engaged in the maintenance of the right of way would be engaged along the right of way.

[2] The degree of care to be exercised by the defendant would not be as great, of course, as its care towards a stranger at a crossing, because of the familiarity of intestate with the manner of operation of the railroad and because of his employment. But somewhere between the duty to a trespasser and the duty to a stranger at a crossing is to be found the duty owing in this case, even if the train was being operated upon the right-hand track.

[3] It seems equally plain that such duty was increased by the special circumstances here present. The defendant, for its convenience or because of its necessities, chose to operate this train in an unusual manner and upon a track where ordinarily the trains ran in the con

trary direction. ' Of this change, the intestate was given no notice. The morning was foggy, and the ordinary warning from the rumble of the train was diminished by the noise of the freight train on the other railroad. Of all these circumstances the engineer had knowledge, and that knowledge increased his duty of vigilance. His failure to see intestate must be ascribed to either an obstructed vision, by reason of the fog, or a lack of diligence in keeping a lookout ahead; and, under either circumstance, together with the failure to give any signals, it seems clear that a case was made requiring the submission of the negligence of the engineer, under the circumstances, to the jury as one of fact. Di Sario v. N. Y., O. & W. R. R. Co., 142 App. Div. 159 , 126 N. Y. Supp. 984 .

[4] The negligence, if any, of the engineer is imputable to the defendant. Sereno v. D., L. & W. R. R. Co., 145 App. Div. 136 , 129 N. Y. Supp. 159 .

It may be that with the evidence of both sides in the case, the weight of the evidence will be such as to require a verdict for plaintiff to be set aside. But that question is not here on this record.

[5] Having reached the conclusion that there is some evidence justifying the inference of negligence for which the defendant is responsible, the case should have been submitted to the jury under the doc-train of McDonald v. Met. Ry. Co., 167 N. Y. 66 , 60 N. E. 282 , since followed by many similar holdings.

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