Ward v. New York Central & Hudson River Railroad

Upon the trial of this action the court submitted special questions to the jury. The first was as to the defendant’s negligence, which the jury answered in the affirmative; second, as to the freedom of the deceased from contributory negligence, which was also answered in the affirmative; and to the third question the jury fixed the damages caused to the next of kin of the deceased at $7,833.33. Before these questions were submitted to the jury, the defendant had made a motion to dismiss the complaint, which motion the court reserved until after the jury answered the special questions submitted to them, and subsequently dismissed the complaint; and it is an appeal from the judgment entered upon this dismissal of the complaint that is now before us.

We think the question as to the negligence of the defendant was properly submitted to the jury, and the only question presented upon this appeal is whether the evidence as to the freedom of the deceased from contributory negligence was sufficient to sustain the finding of the jury in that regard. On the 30th day of November, 1897, at about 15 minutes before 10 o’clock in the morning, the deceased was crossing Eagle avenue, in the 23d ward, in the city of New York, at 149th street, and was there struck by a train of the defendant and killed. The only witness called by the plaintiff who saw the accident was one Monaghan, who testified that he was at the time driving a truck down 149th street west of Eagle avenue, in which the tracks of the defendant’s road were laid; that as he drove down 149th street he saw the deceased standing on the corner of Eagle avenue and the street on the westerly side of Eagle avenue; that while there the deceased “looked apparently up the track, in the direction of where the train comes out. * * * He turned and looked that way, and then he started to walk down towards the track, on the north side of 149th street. * * * I did not see him until the locomotive came right out of the cut, and hit him, and threw him on the opposite track, and cut him right in half”; that it was about 25 or 30 feet from where

In Woodard v. Railroad Co., 106 N. Y. 369 , 13 N. E. 424 , at a point along the road upon which the plaintiff was proceeding, 31½ feet from the intersection of the street, the rails of a switch could be seen to the west a distance of 57 feet, and when within 10 feet of the track .it could be seen a distance west of 137 feet. In that case the plaintiff’s intestate and one Phelps approached the crossing, and the deceased was struck at the southerly rail of the switch, when almost across it,, by one of the coal cars of the defendant’s road, moving by its own momentum. The accident occurred in the middle of a bright, clear day, when nothing existed to hinder or obstruct the sight, when the injured man was on foot and could have stopped at any instant, and when the merest glance along the switch to the west would have developed the approaching danger; and the court said that:

“It is absolutely certain that, at any time when within ten or fifteen feet, deceased had only to look and pause, to be safe. * * * So that the facts make it absolutely certain that Woodard and Phelps either looked, and, seeing the car coming, undertook to cross in front of it, or did not look, when that was their duty, and went blindly upon the track, taking the chaneesof what might occur. * * * The case is one where ordinary prudence and care was not shown or inferable, and for which no excuse or palliation can be given.”

In Cullem v. Canal Co., 113 N. Y. 667 , 21 N. E. 716 , the deceased, driving a horse attached to a wagon, approached the crossing in the direction from which the engine was approaching until he got upon the tracks. It appeared that from a point 70 feet from the crossing the track to .the south could have been seen for 146 feet by the deceased, if he had looked, and 50 feet from the crossing he could have seen it for 220 feet. The court upheld a nonsuit, stating that the duty which rests upon a traveler in approaching a railroad to look and listen was not discharged by the intestate; the court saying:

“There is no evidence that the' intestate did look or listen. On the contrary, the strong inference from the evidence is that he neither looked nor listened; and there is no reasonable ground for the supposition that he was in a position where he had to choose between imminent perils, and that he could not have escaped one without encountering the other."

‘ In Wiwirowski v. Railway Co., 124 N. Y. 420 , 26 N. E. 1023 , the court, in reversing a judgment for the plaintiff, held that:

“They were in a known place of danger, and, had they exercised their senses under the circumstances, it is at least probable that they would have both seen and heard the approaching train. Freedom from contributory negligence cannot be assumed.”

In Wieland v. Canal Co., 167 N. Y. 19 , 6 N. E. 234 , 82 Am. St. Rep. 707 , it appeared that about 30 feet from the track where the plaintiff’s intestate was killed the track was plainly visible from the west for a distance of 150 to 200 feet, and that at this point a train coming from the west through the cut could not be heard until it came within 150 or 200 feet of the crossing; that the train with which the decedent collided was moving at the rate of 50 or 60 miles an hour; that the deceased, when approaching this track, was bound to look and listen, and 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; that the deceased, if he had looked or listened, could have seen or heard the approaching train, and when it was 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 then became necessary for the plaintiff to go a step further, and give some affirmative evidence from which a jury could have found that the accident was free from contributory negligence.

In Hudson v. Railroad Co., 61 App. Div. 134 , 70 N. Y. Supp. 350 , we held that the plaintiff was guilty of contributory negligence in a case much like the one under consideration. It there appeared that the plaintiff walked from a point from 25 to 30 feet from the track without looking or listening for an approaching train; that he testified that it took him about 7^2 seconds to walk from the place from where he looked toward the west, to the track itself, and that, when about 10 or 12 feet from the track, he hesitated 1 or 2 seconds, and that it was 10 or 11 seconds from the time he started to walk to the’ track until he was upon it, — the plaintiff thus walking upon the track without taking any care to ascertain whether or not there was any approaching train which would render his approaching the track dangerous. In that case we held there was such negligence as precluded the plaintiff from recovering, stating the rule that:

“Plaintiff was bound to look when he was in such a situation that he could see whether there was a train in sight which would prevent his crossing the-track in safety. Looking before he reached the point that would give him that information was not performing the duty resting upon him, and which he was bound to perform before he could' be said to be free from contributory negligence.”

We think this case is within the principles established in the cases to which attention has been called, and that 'the court below was justified in dismissing the complaint upon the ground that the plain

It follows that the judgment appealed costs.

VAN BRUNT, P. J., and McLAUGHLIN, J., concur.

(dissenting). I agree with Mr. Justice IN GRAHAM in his conclusion that upon the evidence the question of defendant’s negligence wias one for the jury, but I dissent from his further conclusion that from the evidence the deceased was, as matter of law, guilty of contributory negligence; thinking, as I do, that this question, also, was one for the jury. These facts, so far as given in the opinion, are correctly stated; but there is one feature which is not given sufficient prominence, and which, I think, is important as bearing upon the question of contributory negligence. The cases relied upon in the prevailing opinion are those having relation to a steam railroad, upon which trains regularly run, and in approaching which an active duty of care devolves upon one attempting to cross the tracks. The place where this accident occurred was within the city limits, and in the heart of a populous district, and where trains did not regularly run. There was but a single track, constituting a switch or connecting line or siding, which was occasionally used in moving cars loaded and unloaded at irregular intervals to and from Port Morris to the main line. The train which struck the man consisted of but three cars, with the engine running backwards, and was on its way to the freight-yard at Melrose: The accident occurred at a crossing much frequented by the public, where Eagle avenue joins 149th street; the track lying in 149th street, and intersecting it diagonally. So little was the track used that it was thought unnecessary to keep stationed at that place a flagman, or provide a gate or signpost, as it would certainly be the duty of the railroad to do if the track had been in frequent use for the passage of trains. One familiar with these conditions, as the deceased was, according to the testimony, had no such active duty imposed upon him as would have been the case were he approaching and attempting to cross the main tracks of a railroad. On the contrary, it seems to me, he had the right to assume that at such occasional times as this track was used, and it was attempted to round the curve through the cut which opened into the street and avenue at this point, those in charge of the train would give súme warning of its approach. That no such course was followed appears from the prevailing opinion; and, in the absénce of any warning or notice, I do not think it can be said, as a matter of law, that the deceased, having no reason to apprehend that at that time a train would be likely to approach, was guilty of contributory negligence in attempting to cross. The plaintiff, moreover, did not have the benefit of the testimony of the deceased as to just what care he observed in coming upon the track. As said in Schafer v. City of New York, 154 N. Y. 472 , 48 N. E. 75i:

“If he had survived the accident, it would have been necessary for him, in order to meet the burden of proof, to state what he did and what he tried

•to do, fully and explicitly; but, as he is dead, less evidence is required of his ■personal representatives. The plaintiff’s intestate was bound to . exercise •reasonable care; but if, owing to the circumstances, the evidence of care was weak, it does not follow that it was not for the consideration of the jury. If there was any evidence upon the subject, the ease should have been submitted to them for decision.”

And in Rodrian v. Railroad Co., 125 N. Y. 529 , 26 N. E. 741 , it was said:

“In case of a death accident at a railroad crossing, it must often happen that the circumstances immediately preceding it, and the acts and conduct of the deceased, are left in great obscurity. But the rules of law governing the right of recovery are the same as in other eases, although slighter evidence of compliance with the duty cast upon a plaintiff might be deemed sufficient •than where the injured person was alive and competent to testify.”

It is true that in the case at bar there was an eyewitness, and therefore what has been said in many cases as to the relaxation of the rule requiring strict proof that the deceased was vigilant and observant as he approached the track is not entirely applicable; but the testimony of Monaghan, it se'ems to me, is not to be considered and read as though he saw or knew everything done by the plaintiff’s husband before attempting to cross. He states merely what he did, observe, and even from that evidence it appears that he saw the deceased standing, before starting to cross, on the westerly side of Eagle avenue, and near the corner of the 149th street crossing; that he—

“Looked apparently up the track in the direction of where the track comes out. * * * He turned and looked that way [southeast], and then he started to walk down towards the track, on the north side of 149th street. * * * I did not see him until the locomotive came right out of the cut, and hit him, and threw him on the opposite track, and cut him right in half.”

And Monaghan further says:

“The cars * * * came right out all of a sudden, — out of this cut. * * * The whistle was not blown. * * * The bell was not rung. * * * I did not know they were coming till they were almost on top of me. * * * 1 looked up the track at the same time. I did not see any train.”

The testimony of this witness, therefore, as to what he noticed with respect to the deceased before he attempted to cross, did not make out a case of contributory negligence, as matter of law, because it is evident therefrom that the deceased observed some care- and caution in the way of looking for approaching trains before going to the track, and it does not establish that he did not thereafter observe care. As said in Rodrian v. Railroad Co., supra: ,

“If, in case of an accident at a crossing, it appears that the person injured -did look.for an approaching train, it would not necessarily follow, as a rule of law, that he was remediless because he did not look at the precise place and time when and where looking would have been of the most advantage. Many circumstances might be shown which could properly be considered by the jury in determining whether he exercised due and reasonable care in making his observation.”

Here, according to the testimony, the plaintiff’s intestate, after looking, attempted to cross without any reason to apprehend that a train was likely to approach; and the train which struck him came swiftly

“If there is any reasonable evidence of care on the part of the plaintiff in an action to recover damages on account of negligence, it is for the consideration of the jury. There was some evidence of care on the part of the deceased, because he looked in both directions when he started across the avenue, as well as when he was halfway to the nearest track. There was no direct evidence that he listened, and there never can be when the subject of the accident is dead. It appears, however, that he was on the alert and using his eyes, which is some evidence, under the circumstances, that he was also using his ears. ■ Moreover, the jury could have found that if he had listened he would not have heard the train, for there was no noise and no warning.”

The inference which in this case could fairly be drawn from the evidence is that the deceased did not attempt to cross without taking some precaution, but that he stopped and looked. If at that time, as the jury might infer, there was no train in sight, and he proceeded to cross, and thereafter the train, before he had reached a place of safety, rounded the curve and came through the cut, traversed the intervening space without having given any warning of its approach, and struck him, it cannot, I think, be held that he was guilty of contributory negligence. Under such circumstances, taking the view most favorable tor the defendant, it cannot be concluded, as matter of law, that if, after starting to cross, he had looked again, and seen the train approaching at a rapid rate, he could in the time have avoided the accident which resulted in his death. In other words, if the jury had the right to infer (as, from the evidence, I think they had) that, when the deceased stopped and looked, he did not see any train, and there was none in sight, owing to the contour of the country, and the situation of the crossing with reference to the track, which crossed it diagonally, and came through a cut and around a curve, then they might conclude (particularly as there is evidence that no warning was given of. the approach of the train) that he could not have avoided the accident. As said in Pruey v. Railroad Co., 41 App. Div. 162 , 58 N. Y. Supp. 800 :

“The philosophy of the rule requiring a traveler approaching a railroad crossing to look and listen for a train before venturing upon the tracks rests upon a common-sense foundation. These are regarded as the most efficient acts in demonstrating the vigilance of such traveler, and most likely to apprise him of danger. If to look would be futile, then the person is absolved from an obligation which would be wholly mechanical. * * * The same principle applies where to listen would be of no practical moment.”

A somewhat similar situation to that here appearing was presented, although from different causes, in the case of Noble v. Railroad Co., 20 App. Div. 43 , 46 N. Y. Supp. 647 , affirmed without opinion in 161 N. Y. 620 , 55 N. E. 1098 , where it was said :

“His duty was to look and listen. But to look was of no avail if the car or cars on the siding obstructed his vision, as may well have been the case in the fog, without his perceiving that there was any such obstacle there, or what the nature of the obstacle was. And while there is evidence that the engine bell on the Chicago Limited was rung as it neared Ashburton

avenue, the noise of the north-bound freight train could readily render its sound imperceptible to a listener situated as was the plaintiff’s husband when he endeavored to cross the track.”

In that case, as stated in the opinion — ■

“No one saw the accident, but, shortly after the train had passed southward, Noble was found dead near the track, fifty-six or fifty-seven feet south of the crossing, with his skull fractured and his side completely crushed in. Near him lay a small lantern, called a ‘marker,’ which was subsequently found to belong to the pilot beam of the locomotive.”

The court sustained the verdict for the plaintiff, and said, after giving authorities:

“In the case last cited it is said that, if the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased, a question of fact may arise, to he solved by a jury, requiring a choice between possible but diverging inferences. The case at bar seems clearly to fall within the class thus mentioned, and it is easy to find instances in the Reports where recoveries have been sustained upon less cogent proof than, is here presented as tending to establish the absence of contributory negligence.”

I regard the present case as presenting, for the reasons stated, much stronger evidence in behalf of the plaintiff on this subject than appeared in the authority cited, and think, therefore, that the question of contributory negligence should have been submitted to the jury, and that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

HATCH, J., concurs.