Lonergan v. Erie Railroad

A short distance outside of the city of Buffalo double tracks owned by the Buffalo Creek Railroad Company and by the New York, Lackawanna & Western Railroad Company, respectively, cross each other nearly at right angles; the tracks of the former company running in a somewhat northerly and southerly direction, and those of the latter company in an easterly and westerly direction. Under some arrangement which does not very definitely appear in this case, and which is immaterial, the tracks of the former company are used by, amongst others, the defendant, Erie Railroad Company, for its trains, and the tracks of the New York, Lackawanna & Western Railroad Company are used by the Delaware, Lackawanna & Western Railroad Company. It does not appear what the relationship of these last two named companies is, but upon the face of the record they are entirely distinct corporations. At the northwest angle formed by the tracks aforesaid is situated a tower house, from which signals are given to trains upon each of the two roads mentioned approaching the crossing in question. This house was erected and is operated under an arrangement between the Buffalo Creek Railroad Company and the New York, Lackawanna & Western Railroad Company, whereby the former hires and pays the operator, but the latter company repays the former company such expense. Upon the side of said tower house towards each of said railroads at the time of the occurrences in question was a set of signals, consisting of red and white disks attached to different ends of the same arm or appliance, and so arranged that when the red disk was in, out of sight, the white disk would show, and vice versa. The white disk was the signal of safety to a train approaching the crossing, and authorized it to cross the tracks of the other road. The red disk was a danger signal, and, when shown to a train approaching upon either road, was a signal to it to stop before reaching the crossing. The signals were so arranged that, if working properly, the red signal would always show until the operator in the tower pulled it in and held it, allowing the white signal to then show. Plaintiffs’ intestate was an engineer in the employ of the Delaware, Laclca'wanna & Western Railroad Company; and upon the morning of December 22, 1899, he was proceeding from East Buffalo to Buffalo, going westerly upon the northerly track used by said company towards the crossing in question, and backing with his engine. His fireman and one or two other people were on the engine with him. As he approached the crossing in question, it is claimed by plaintiffs, and seems to be conceded by defendant, that he received the white signal of safety to make the crossing. At the same time one of defendant’s passenger trains was approaching said crossing from the northerly direction. It is a hotly-disputed question in this case whether the engineer of said train received from the tower house a white signal to make the crossing, or a red signal to stop before making it; it being claimed by the defendant that the former was the case, and by the plaintiffs that the latter was true. However this may be, the intestate upon his engine approached the crossing without making any full stop, running at a speed estimated from 8 miles an hour down to 4 miles; and the passenger train likewise .approached the crossing without making any stop, using steam, and

Independent of the claims based upon the facts above outlined, various contentions were predicated upon the provision of what is known as the “Railroad Law,” which requires that:

“All .trains and locomotives on railroads crossing each other at grade shall come to a full stop before crossing, not less than two hundred or more than eight hundred feet from the crossing, and shall then cross only when the way is clear and upon a signal from a watchman stationed at the crossing.” Chapter 466, Laws 1808.

Concededly, neither engine came to a full stop.

Plaintiffs’ claim of negligence upon the part of the defendant is entirely or mainly based upon the theory that defendant’s train did not have the white signal of safety for a crossing, but had the red signal of danger for a stop; that its servants disregarded such signal, and negligently caused the accident. In addition to disputing these facts, defendant undertook to avoid the force of this contention by claiming, in substance, that the signals in the tower house worked imperfectfy, and also that the New York, Lackawanna 81 Western Railroad Company was responsible for the operation of this tower house, and that this action should have been brought against it; and various exceptions were taken to the disposition of these claims by the trial justice. We think, however, that the question of defendant’s negligence was very carefully and.properly submitted to the jury. The trial justice accorded to defendant all the rights to which it could possibly be entitled when he held and ruled, as he did repeatedly, that the plaintiff could not recover in this case unless the jury should find that the signal to defendant’s train was the one of danger, and against its making the crossing. This, of course, took out of the case any claim based upon alleged imperfections of the tower house, because it was, in effect, ruled that, if the engineer of the passenger train had the safety signal, he had a right to proceed, and that it made no difference whether he obtained such signal from the affirmative act of the signalman, or from some imperfection in the tower.

It was seriously urged upon the trial, and has been upon this appeal, that plaintiffs’ intestate was, as matter of law, guilty of contributory negligence in approaching and going on the crossing when

The intestate did not obey the statute telling him to stop between the points of 200 and 800 feet of the crossing. Does that, as matter of law, bar the plaintiffs’ recovery? We think not. The statute does not by its terms make a person disobeying its provisions so guilty of negligence, or otherwise obnoxious to the law, that he.cannot recover for injuries resulting under'such circumstances as attended intestate’s death. The principle is well settled, therefore, that, while the disobedience may create a presumption of negligence here, such presumption may be so rebutted by all of the circumstances as-to make it a question of fact to be determined by the jury whether the violation did in fact cause or contribute to the accident complained of. Blanchard v. Steamboat Co., 59 N. Y. 292 ; Hoffman v. Ferry Co., 68 N. Y. 385 ; Id., 47 N. Y. 176 , 7 Am. Rep. 435 ; Minerly v. Ferry Co., 56 Hun, 113 , 9 N. Y. Supp. 104 ; Railway Co. v. Snyder, 117 Ill. 376 , 7 N. E. 604 . This was the view taken and-acted upon—as we think, correctly—by the learned trial justice, and which we think must govern upon the facts of this case as they now appear. It may be urged that, if intestate had come to a full stop-with his engine, he would not have had time to get in front of defendant’s train, and therefore that there can be no question that his failure to observe the statute did contribute to the accident. In our opinion, the jury had the right to find that intestate got the white signal of safety about a quarter of a mile from the crossing, and thereafter had it all the while ; that he could have made a reasonable compliance with the statute by stopping at least within from 400 to 600 feet away from the crossing, wherefrom he could have had a view of defendant’s track and any train thereon for a distance of from 300 to 400 feet northerly of the crossing; that he had the same view without stopping; and that, as matter of fact, defendant’strain did not come within the space of vision upon its track above specified, so that intestate could see it, either stopping or moving, while within the points of observation of 400 to 600 feet, above stated. Under such circumstances, if it be assumed that if intestate had stopped he would not have got upon the crossing in time for a collision, we still do not think that the temporary and accidental location of the engine on the crossing as a result of a mere loss of time in stopping should be regarded as such a proximate, natural, and contemplated result of the failure to obey the statute as would settle in the affirmative the proposition that in a legal sense the failure to stop caused the accident. The essential object of the statute waste compel those in charge of trains making the crossing to devote more attention and give greater care to the performance of the act in safety, not to regulate the instant of doing it. If, through fail

“Evidence was -offered * •* * fro-m which a jury might possibly have inferred that the violations of the statute which were established by the evidence in no manner contributed to the happening of the accident, except the mere fact that by the violation of the statute the plaintiff was in the position in which he was. But, even if he was in that position in consequence of his violation of the statute, this gave no right to the other boats in the river to run him down. He had made himself liable to the penalties prescribed by the statute, and had also made himself liable in case of accident to the presumption that the accident had arisen because of his violation of the requirements of the statute, and these were the only burdens which such violation imposed upon him.”

In Hoffman v. Ferry Co., 47 N. Y. 176 , 7 Am. Rep. 435 , cited above, it was held that although a party, while violating a statute, is placed in the position and situation where he receives his injuries, such violation does not bar a recovery, unless it is a proximate and directly contributing cause of the accident in some other respect than the merely incidental one of physical location. See, also, same case as reported in 68 N. Y. 385 .

We are unwilling to hold, however, as matter of law, the assumption, heretofore made for the sake of argument, that, if intestate had brought his engine to a stop within the limits prescribed by the statute before reaching the crossing, he would have necessarily avoided the collision. There is evidence that before reaching the bridge over the Buffalo creek, and within the limits where he might have made a stop, he was proceeding at a rate not exceeding four miles an hour; that his engine might have been stopped within three or four feet; and that the net loss of time by reason of such stoppage would not have exceeded a small fraction of a moment. It might

We pass to the consideration of the other defense ur. ed,—that, independent of the statute, plaintiffs’ intestate was guilt r of contributory negligence, as a matter of law,—and which ct ntention, also, we are unable to adopt. The intestate received the v hite signal of safety, which a jury might find said to him, in substa tee, that the crossing was clear for him; that he had the right of v av, and that, under the practice observed, the red signal of danger was out against any train approaching as did defendant’s; and th it such train would be stopped before reaching the crossing. At the time he received this signal, defendant’s train was not within his sight. Under these circumstances, we do not think that the intestate was charged, as a matter of law, with the duty of keeping a vigilant watch and lookout for trains approaching upon the Erie track, but that he had the right prima facie to presume that he could rely upon the signals, and that the latter would not only govern in permitting him to proceed over the crossing, but also in preventing any other approaching train from interfering with his safe passage thereover. The practice and understanding of engineers as governing the crossing is set forth in the testimony of defendant’s engineer upon the train in question. He testified:

“After we get the target, and call or give the signal that we have got the target, we then understand we have the right of way, and don’t look out for anybody on the crossing ourselves. That is what our time-table says,—not to proceed until the white block gives you the right of way. When we do get it, and we answer we have got it, and it still remains there, we then have the right of way, as I understand it, and we do not have to look out for anybody else.”

As the intestate approached the crossing, he was on the opposite side of the engine from the defendant’s train; and while it was probably possible for him, over and across the boiler, to see the defendant’s train, this must have required some effort. There is evidence that just before he reached the crossing he was leaning out of the cab window upon his side of the engine, looking down the Lackawanna tracks towards the crossing in question. We think the jury might say this conduct and position were not improper.

Again, however, if we assume that the intestate did watch or should have watched, did see or should have seen, the Erie train as it approached the crossing, we still think his conduct presented a question of fact for the jury. Remembering that he had the white

“That was the first time, as we came along there, that I realized that the Brie was not going to stop before striking ns. When I called to the engineer [intestate] was the same instant that he opened her wide open. Up to that time I had expected that she was going to stop before reaching our track.”

This witness was a man not inexperienced in railroad matters,, and the impression produced upon his mind by the approaching Erie train is entitled to some weight in determining the course of conduct which intestate might legitimately pursue. It was at this instant that he opened his engine, and endeavored by accelerating its speed to clear the crossing. If we are correct in our reasoning that he was not guilty of negligence in getting into the position that he then occupied, it was not negligence for him, as matter of law, to endeavor to escape from the emergent danger by doing as he did. The plaintiffs would be entitled to have a jury weigh his conduct in this respect. Some evidence bearing upon these questions was introduced, in the form of rules of the railroad company requiring its engineers to come to a stop before reaching a crossing. We do not think that such rules, upon their face, present any considerations outside of those already discussed in connection with the statutory provision. In addition to this, a practical construction seems to have been placed upon them by the conduct of the employés of the railroad, with the acquiescence of its officers, which exempted the-

While the case was thus, in our judgment, properly submitted to the jury in a most careful manner by the trial justice upon ihe main issues, we think that he fell into error in refusing to charge the jury as requested by defendant’s counsel upon two or three'specific points and features of the case, and that these errors must lead to a new trial. As stated before, the question whether defendant’s train received the red or the white signal was vigorously contested upon the trial. The towerman testified in behalf of plaintiffs that he gave the danger signal. Five witnesses upon the part of the defendant (three of them being employés) gave evidence tending to prove that defendant’s train received the white signal, which entitled it to go ahead over the crossing. Each party endeavored to support its theory by reference to some facts outside of the mere statements of these witnesses. Defendant’s engineer in charge of the train testified that as he approached he saw the white signal, and that he remarked to his fireman, referring thereto, that it was “On the white,” and that his fireman answered back, “On the white.” Plaintiffs predicated a theory upon this evidence that defendant’s engineer was color-blind, and that this foregoing remark was a question addressed to his fireman for the purpose of removing any doubt or uncertainty in his own mind, and ascertaining whether he was correct. The engineer, however, testified positively that there was no trouble with his sight; that what he said was not a question addressed to his fireman, but that it was his usual custom, simply as a matter of extra precaution, to call his signal to the fireman, and have the fireman call it back to him. All of these facts appeared by the evidence of the engineer himself. Thus the same witness who testified that he did call this signal to the fireman gave at the same time in connection with it the explanation of why he did it. And there was nothing in his evidence to impugn his statement that he was not color-blind. In addition to this, upon the trial the plaintiffs’ counsel subjected him to a color test by means of a lead pencil, which appears to have been quite severe, and to which the witness seems to have responded with perfect readiness, and concededly correctly.. In the body of his charge the learned trial justice referred to the respective claims of the parties with reference to this engineer’s capacity for detecting color, squarely leaving it to the jury to determine wmcn of the parties was right in reference to it. Afterwards he was requested by the defendant’s counsel to charge the jury “that in view of the color tests that the counsel submitted the engineer to in their presence with his own red lead pencil, in a poor light, and the other evidence given here by all the witnesses, there is no foundation on which they can find that the engineer of the Erie was color-blind”; and this request was refused. We think this was an error. Upon reading the record with care, which, of course, it was not possible for the trial justice to do in disposing of the case and the' request to charge, we do not think that what took place between the engineer and his fireman would fairly warrant a jury in finding that he was asking for the color of the target because he was color-blind or uncertain what it was, but that the fair context of what was said

Judgment and order reversed, and new trial granted, with costs to appellant to abide event.

SPRING, J., concurs. ADAMS, P. J., concurs in result, in separate opinion, in which McLENNAN, J., concurs. WILLIAMS, J., concurs in result on ground of errors in charge and contributory negligence.

(concurring). I agree that the judgment and order in this case should be reversed, and a new trial ordered, but prefer to rest my conclusion upon the ground that the plaintiffs’.intestate, as matter of law, was guilty of contributory negligence.

On the 22d day of December, igoo, when the r -cident in question occurred, a statute was in existence in this state which required that:

“All trains and. locomotives on railroads crossing each other at grade shall come to a full stop before crossing, not less than two hundred or more than eight hundred feet from the crossing, and shall then cross only when the way is clear and upon a signal from a watchman stationed at the crossing.” Chapter 466, Laws 1898, amending chapter 565, Laws 1890, commonly known as the “Railroad Law.”

It is conceded that this statute was not regarded, by Lonergan, the plaintiffs’ intestate. On the contrary, it is established by indisputable evidence that, instead of coming to a dead stop, he proceeded with his engine towards the crossing of the defendant’s road at a rate of speed of not less than lour miles an hour, and probably as great as six or eight, and that his engine was struck within six feet of the rear end of the tender by the defendant’s engine, which was attempting to make the crossing at the same time. This fact demonstrates beyond all question that, if Lonergan had obeyed the statute, he would not have reached the crossing until after the defendant’s train had passed over it. It is true that a white target was exhibited from the signal tower at the crossing, which indicated that the way was clear for Lonergan to make the crossing; but this did not absolve him from the necessity of obeying the statute, and taking such other precautions as were reasonable to protect himself from just such an accident as followed. McGrath v. Railroad Co., 59 N. Y. 468 , 17 Am. Rep. 305 . In other words, he had no right to regard the exhibition of a white target as an absolute assurance of safety, which would justify him in disregarding the statute and closing his eyes to his surroundings; for the signal given might have been the' result of a mistake upon the part of the watchman, or, as the evidence tended to prove was the fact in this case, because the apparatus in the signal tower was out of order. Now, it may be conceded that in one sense a violation of this statutory requirement is not per se a bar to the plaintiffs’ recovery, but that it is simply a circumstance to be considered in ascertaining the proximate cause of the accident which resulted in the death of the plaintiffs’ intestate. This, however, as I understand it, is the rule only where evidence is given which tends to show that the accident was caused solely by the wrongful or negligent act of the persons in charge of the colliding train. Blanchard v. Steamboat Co., 59 N. Y. 292 ; Hoffman v. Ferry Co., 68 N. Y. 385 . Such, however, is not the case here. It may be assumed that the negligence of the engineer of the defendant’s train contributed to bring about the collision ; but it cannot be said, in the circumstances of this case, that it was the “sole” cause thereof, for, as has already been stated, it may. be fairly inferred, even if it be not absolutely demonstrated, that if the statute had been obeyed there would have been no collision. The object of this statute is to guard as far as possible against just such results as here occurred, and we think its proper observance

For these reasons,, it seems to me it was clearly the duty of the. trial justice to have nonsuited the plaintiffs, and that his refusal so to do was error which requires a reversal of the judgment and order appealed from.

McLENNAN, J., concurs.