Goodell v. New York Central & Hudson River Railroad

Glasgow street runs north and south in the village of Clyde. The defendant’s tracks cross it at a grade, and the ground at the crossing and for some distance each way is nearly level. The four main tracks, numbering from the south, are: No. i, the

main track for east-bound passenger trains; No. 2, for like trails going west; No. 3, the west-bound freight track; and No. 4, for freight trains going east. North of these main tracks are four switch tracks, designated in the record as Nos. 5, 6, 7, and 8. No. 5 is immediately north of the main track for freight trains going east, and it extends several hundred feet easterly of the crossing, uniting with another switch track. The other switch tracks are still north of No. 5. The gouge of the defendant’s track is 4 feet 8*4 inches.

“I noticed there were freight cars on track 5 in front of that freight house, —either three or four, I wouldn’t be positive. With reference to the highway, the one next the highway stood, I should think, about six ties from the sidewalk, or I should think ten or twelve feet. Of course, I don’t know the distance of the ties apart. It was about seven ties. There was a sluiceway theire, and the end of the car came up to the sluiceway. They were box cars. I observed in regard to the freight yards north of the freight house as to whether there were cars there or not. There was cars there. 1 should think there was about fifteen or sixteen. There was one car there that attracted my attention most. It belonged to the bridge builders. It was a flat car, with a house built on it. I observed as I came along whether I could see the tracks to the east looking through that freight yard that night. Q. Could you? A. I could not.”

He further testified that these 15 or 20 cars in the yard “were mostly all freight cars,—box cars.” The witness Meade had been over the crossing going south just before the collision, and was on the bridge over Clyde river when the freight train on track No. 3 came in sight. He was at the time driving two horses hitched to a bobsleigh, and testified:

“The rails were above the plank, and stuck to the runners of the sleigh, froze to the sleigh. I saw this train as it approached that crossing that night. I saw it before it approached the crossing. Q. When you passed over that lift bridge did you make any observations to the east? A. No, sir; not until I got to the yards, and when I got to the yards I seen no chance to look down the track. When I got to the yards I took an observation to the east that night; to the west, too. Those yards to the east were pretty well full of cars. There was one little place I could see through, maybe two feet, to the east, and there was some cars to the west, but a man could see the engine that stood on 4.”

On the night of the collision there were three or four freight cars on track No. 5 south of the freight house. One of these cars extended west of the building, and, some witnesses testified, to within 7 or 8 feet of the east line of the sidewalk in Glasgow street. The plaintiff’s engineer testified that with a box car in this location a traveler going south on the highway could not see the tracks to the east until he reached track Nó. 5, and in the center of that track could see a train going west on track No. 2 east of the crossing 165 feet, and from the south rail of track No. 5 to the south

The negligence of the defendant is sufficiently established to require its submission to the jury as a question of fact. Were the occupants of the cutter guilty of carelessness ? The crossing was a

When they had crossed on track No. 5 they were not negligent as a matter of law .in going ahead of the freight train, and that is the train by which their conduct is to be measured. A glance at the surroundings may have convinced them it was feasible to cross before that train could reach them, and that was the only way out of the dilemma. In that forecast of a difficult situation they made no error. It is claimed they should have listened. That would not have apprised them of the oncoming of the passenger train, for the noise of its approach could not be distinguished above the din of the freight train. The bell on the express train was not ringing, so to listen then would have been fruitless. They could see the freight train, and knew they could avoid it. If they had listended they would not have been aware that the other train was coming.

It is, however, urged that the occupants of the cutter must have seen the approaching express train before they reached No. 2 track,-

Again, a jury might have found that the express train was not in sight until the cutter was nearly or quite upon track No. 4. The cutter, with its load, on bare ground, was necessarily delayed in its progress, and the rate of speed of the fast train may have been 20 times that of the horse and cutter. The northerly rail of track No. 4 was about 30 feet distant from the southerly rail of track No. 2, so that the train must have been 600 feet away when the cutter reached track No. 4, and was still concealed from the people in the cutter by the freight train. In considering the conduct of the plaintiff’s intestate and his companions in the cutter, we are not to test them wholly by the light which the record sheds, but in a measure from the standpoint of these people, with the dangers which apparently were confronting them. In the emergency thus created we may not say that it was not for a jury to determine whether the plaintiff’s intestate performed the duty required of him in passing over the crossing.

Considerable comment is made by the defendant’s counsel because there were no eyewitnesses of the accident. The facts, however, were ample to submit to a jury. That the plaintiff’s intestate with his brother and an aunt, started that evening from the home of the plaintiff, in a cutter as described, is proved by the latter. The train going east certainly did not strike them. The fireman of the freight train testified that train did not come in contact with them, and, in fact, the distance they were hurled, indicates they were not hit by a slow-moving train. Their bodies were found west of the crossing, directly after the west-bound passenger train passed over it. The horse, with the cutter, was found a short distance south of the crossing, and the end of the cutter was cleft off, as if by an object in rapid motion. The train stopped after the collision by

It has been held that, when there are no eyewitnesses of a collision of this kind, the rule requiring strict proof of the vigilance of the person killed or injured is somewhat relaxed. Pruey v. Railroad Co., 41 App. Div. 158 , 58 N. Y. Supp. 797 , affirmed 166 N. Y. 616 , 59 N. E. 1129 ; Noble v. Railroad Co., 20 App. Div. 40 , 46 N. Y. Supp. 645 , affirmed 161 N. Y. 620 , 55 N. E. 1098 . In the latter case the court say at page 42, 20 App. Div., and page 647, 46 N. Y. Supp.:

“In actions to recover damages for negligence resulting in death, where there are no eyewitnesses of the accident, the freedom of the deceased from contributory negligence may be established by proof of the facts and circumstances from which it may fairly be inferred that the deceased was not in fault.”

We find nothing in Wieland v. Canal Co., 167 N. Y. 19 , 60 N. E. 234 , which lessens the effect of these cases. In fact, in its opinion the court is careful to uphold the doctrine which they enunciate, but disposed of the contention before it on its own peculiar facts. In that case the decedent, a person of mature years, in full possession of his faculties, was killed by a train at a crossing with which he was entirely familiar. The conformation of the land adjacent to the crossing made it hazardous, and yet there was an unimpeded view of an approaching train before the crossing was reached. The alleged caution of the decedent was based upon inferences deducible from these fixed physical features. In the present case the great hazard was due mainly to temporary conditions, which are elucidated by the proof, so that the jury could appreciate quite clearly how the collision occurred, and what obstacles confronted the plaintiff’s intestate and his companions as they approached the track on which they were struck.

The counsel for the defendant is undoubtedly correct in his assertion of the rule that a person approaching a crossing must listen as well as look, and especially is this true if for any reason his sense of sight will not avail him. It is quite obvious, if the situation existed as described by the witnesses, that the decedent could'have heard nothing, however intently he may have listened. With that fact established, it was not incumbent upon him to exercise this faculty. In discussing this principle the court in Smedis v. Railroad Co., 88 N. Y. 13 , use this language at page 19, 88 N. Y.:

“But it is urged, that, inasmuch as no witness testifies that the intestate looked to see ordistened to hear if the defendant’s train was approaching, it must be assumed that he did not, and that such bmission was negligence on his part. We know of no such rule. While it is true that a traveler on approaching a railroad crossing is bound to look and listen for an approaching train, before undertaking to cross, it is only where it appears from the evidence that he might have seen had he looked, or might have heard had he listened, that a jury is authorized to find that he did not look, and did not listen.”

Grover Goodell, the driver, must have known that a train approaching a crossing was accustomed to give signals, and the fact he heard only those on the freight engine may have been an element entering into his determination to go over ahead of that train. Certainty, had he known of the approach of the fast train which collided with the cutter, it is fair to infer he would not have been so foolhardy as to race with it.

We are satisfied, after a careful consideration of the record, that the case should have been submitted to the jury. The plaintiff’s exceptions should be sustained, the nonsuit set aside, and a new trial ordered, with costs to the plaintiff to abide the event.

The plaintiff’s exceptions are sustained, the nonsuit set aside, and a new trial ordered, with costs to the plaintiff to abide the event. All concur, except McLENNAN, J., who dissents in opinion.

(dissenting). The only question which need be considered upon this appeal is, was there any evidence which tended to prove that plaintiff’s intestate was free from contributory negligence ? The facts bearing upon this issue are few and simple: The deceased was familiar with the highway leading across the defendant’s tracks where the accident occurred. He knew the location of every permanent structure upon either side which could prevent a traveler upon the highway from seeing an approaching train. He was also familiar, in a general way at least, with the manner in which the defendant’s trains were operated at the place in question. He knew the location of the switch tracks, and of all the railroad appliances located north of defendant’s freight depot, and of track No. 5, which is the first track south of the freight depot. On the night in question he knew, if he looked, precisely how such 'tracks were occupied, and what engines and cars were upon them. As the deceased proceeded along the highway to track No. 5 he knew, if he listened, that a train was approaching from the east, because its bell was rung continuously, and the whistle was sounded at the whistling post. Indeed, it is not claimed that the defendant was in any manner negligent in the operation of that train. After the deceased crossed track No. 5, which is located just south of the freight depot, and on which a train of cars without an engine was standing, if he looked he saw the freight train, the bell of which was ringing, and the whistle of which had sounded, approaching the highway from the east, on track No. 3, and that it was approaching

In the case at bar there is not a particle of evidence to indicate that the deceased did a single thing—exercised the slightest care—after reaching track No. 5, or at any other time, to avoid the accident. The whole evidence bearing upon that branch of the case may be summed up by saying: The deceased and his two companions were in a cutter drawn by a horse which sometimes was afraid of engines. He started to drive upon the highway in question across the tracks of defendant’s railroad. Before he reached track No. 5 he heard the bell ringing on a train approaching the highway from the east, and heard the sound of the whistle. He proceeded to a point between tracks Nos. 4 and 5, and then, if he looked, he saw the freight train approaching which had rung the bell and sounded the whistle. He also saw, if he looked, because it was in full view, the approaching passenger train. He drove on, crossed in safety track No. 3, on which the freight train was approaching, attempted to cross track No. 2, on which the passenger train was approaching, was struck, and he and his two companions were killed. No one saw the accident. No witness attempts to say what the deceased did or did not do. It simply appears that at a certain point upon the highway in question he started to drive'south; that when he reached track No. 2 he was struck by a passenger train coming from the east, and was killed.

“We have no right to guess that he [the deceased] was free from fault; it was incumbent Upon the plaintiff to show it by a preponderance of evidence. She furnished the jury with nothing from which they could infer the freedom of the intestate from fault. She simply furnished them food for speculation, and that will not do for the basis of a verdict. The law demands proof, and not mere surmises.”

In the case of Fejdowski v. Canal Co., 168 N. Y. 500 , 61 N. E. 888 , the headnote is as follows:

“Where there is no evidence, express or circumstantial, that plaintiff’s intestate either looked or listened before he attempted to cross a railroad track, an instruction that the jury might take all the circumstances into consideration, and determine whether or not he did look and listen, and whether or not he could have seen or heard the approaching engine had- he done so, is erroneous, since a verdict in favor of plaintiff may have been' based upon the assumption that he did look and listen, and a judgment •entered thereon must be reversed.”

It is quite as reasonable to suppose that the -deceased attempted to cross in front of the passenger train which struck him, because lie thought he could do so before it reached the crossing, but failed for the reason that he miscalculated the distance or the rate of speed, as that he made the attempt because he considered it was dangerous to stop and remain where he was or to attempt to turn around. One surmise is quite as reasonable as the other. There is no evidence which tends to support one theory as against the other.

It is suggested in the prevailing opinion that when the deceased started to cross track No. 3 he concluded and had a right to conclude that he could cross in advance of the freight train; that his view of the passenger train was then obstructed by the freight train; and as the bell was not being rung on the passenger train, and no warning given of its approach, he had a right to assume no train was approaching on track No. 2, and therefore was not under the necessity of looking or listening or of taking any other precaution for his safety.

In the first place, there is not a particle of proof to indicate that the deceased could not have seen or heard, or that he did not see or hear, the approaching passenger train before he entered upon track No. 3, or that the freight train on that track in any manner interfered with his view of the -passenger train at that time. Indeed, an inspection of the maps put in evidence clearly demonstrates that he could have seen such train if he had- looked. But, even if the freight train obstructed the view of the passenger train, I understand the duty still rested upon the deceased to make some in

We think the case of Wieland v. Canal Co., 167 N. Y. 19 , 60 N. E. 234 , recently decided by the court of appeals, is decisive of the question under consideration. That was a railroad crossing case, and the train which struck the deceased was going at the rate of 50 or 60 miles an hour, giving no warning of its approach. At a point on the highway 30 feet north of the railroad track a better view could be obtained of the track than at any other point, but from that point it was only visible for a distance of from 150 to 200 feet, and the situation was such that an approaching train could not be heard until it came within 150 or 200 feet of the crossing. After leaving the point in the highway 30 feet distant from the crossing, the view of the railroad track was considerably shortened until the crossing was reached. Under those circumstances, the plaintiff’s intestate in that case attempted to cross, and was struck and killed by the approaching train. In discussing the question of the contributory negligence of the deceased, the court said:

“He [the deceased] was bound to exercise reasonable care for his self-preservation; that is, he was bound to exercise that degree of care which a reasonably prudent man would use. * * * He was required to look and listen. Nothing could excuse the absence of this degree of care, or justify the lack of evidence tending to show that it was exercised, except proof that under the conditions which existed it would have been unavailing. Did the decedent either look or listen before he went upon the railroad track? We can find no answer to this question in the record. As we have stated, there is not a single fact or circumstance in the evidence which sheds any light upon the decedent’s movements between the time when he was seen a quarter of a mile north of the railroad track and the instant when he met his death. Could he have heard if he had listened, or could he have seen if he had looked? The evidence shows affirmatively that neither of these safeguards would have been unavailing. Upon the facts before us it must be assumed that the situation was one in which it was difficult either to hear or to, see in time to avoid danger, but it was possible to see and hear, and therefore it was the duty of the decedent to use his faculties of sight and hearing in the exercise of such reasonable care as the known danger of the place required. Had the evidence shown, or tended to show, that either or both of these precautions would have been utterly useless, that branch of the case would have been properly submitted to the jury upon the question whether the decedent had exercised such reasonable care as the exigencies of the situation rendered possible. But when it was once shown that the conditions were such that the decedent, by the exercise of his faculties of sight and hearing, might have averted the disaster, it became necessary for the plaintiff to go a step further, and give some affirmative evidence from which a jury could have found that the decedent was free from contributory negligence. She has failed in this particular. There is neither direct nor circumstantial evidence which points either to the presence or absence of contributory negligence on the part of the decedent, and the case, therefore, falls within the rule very tersely expressed in Wiwirowski v. Railway Co., 124 N. Y. 420 , 26 N. E. 1023 , and Cordell v. Railroad Oo., 75 N. Y. 330 , as follows: ‘When the circumstan

ces point as much to the negligence of the deceased as to its absence, or point in neither direction, a refusal to nonsuit is error.’ ”

In the case at bar, while we may surmise and speculate, it cannot be said—and there is no evidence tending to support the statement— that it would have been “utterly useless” for the deceased to have looked and listened, and therefore, under the latest decision of the court of appeals upon that question, it was essential, in order to entitle the plaintiff to recover, that proof be made that the deceased did look and listen before attempting to cross the track, where he met his death. A traveler upon a highway, seeking to cross a railroad track, who is placed in a dangerous situation immediately before attempting to cross, is not thereby relieved from the duty of exercising ordinary care and prudence, but he must exercise “such reasonable care as the exigencies of the situation rendered possible.” In the record before us there is no evidence that such care, or any care, was exercised by the deceased. Such traveler is bound to “look and listen,” and it must be proved, not surmised, that he did so, or else it must be proved, not surmised, that to look and listen would have been “utterly useless.” In this case no such proof was made.

If the rule of law applicable to this case is correctly stated in the prevailing opinion, the fact that a person was killed at a railroad crossing when there were no eyewitnesses to the accident may be of great advantage to a plaintiff in án action, brought to recover damages for such death, because in such case it will only be necessary to prove that the decedent was in a place of peril immediately before the accident occurred,—a place where it was difficult to see or hear an approaching train,—and from that fact alone it will be competent for a jury to find that he was free from contributory negligence. We think the court of appeals in the case last cited holds distinctly that, even under those circumstances, it must be proved that the deceased looked and listened, or else that those precautions would have been utterly unavailing to prevent the accident. There is no such proof in the case at bar. The conclusion of the whole matter is that there was no. evidence tending to establish freedom from contributory negligence on the part of plaintiff’s intestate.

It follows that the nonsuit was right, that plaintiff’s exceptions should be overruled, and judgment entered upon the nonsuit in favor of the defendant, with costs.