Waddell v. New York Cent. & H. R. R.

The only question which need be considered is, did the plaintiff establish by a fair preponderance of evidence that his intestate was free from contributory negligence, or was the finding of the jury that he was, contrary to or against the weight of the evidence? The question of defendant’s negligence was clearly one of fact to be determined by the jury, and no exceptions were taken to the rulings of the learned trial court in the admission or rejection of evidence, or to the charge or refusal to charge, which present reversible error.

York street, which is located in a thickly populated section in the western part of the city of Rochester, N. Y., extends north and south, crossing the railroad of the defendant, consisting of four tracks; at an angle of 101 deg. 40 min.; the obtuse angle being to the northwest. The roadway of the street is 25 feet wide, and is paved with asphalt to within 8% feet from the northerly track, from which point the entire width of the street—68 feet—is paved with Medina blocks for the entire distance across all the tracks. Immediately south of defendant’s

About 7 o’clock in the morning of the 10th day of October, 1903, plaintiff’s intestate, then 25 years of age, bright, active, and in full possession of all his faculties, approached the crossing in question, with which he was familiar, from the north; riding a bicycle, which he was accustomed to use, along the easterly side of the street, going at the rate of from 5 to 6 miles an hour. When he reached track No. 1, the fourth counting from the north, at a point about 3 feet from the easterly line of the street and of the Medina pavement, he was struck by the engine of a passenger train going east on track No. 1—the regular east-bound passenger track—and injured in such manner that death resulted. The evidence tends to show that the train was running at the rate of upwards of 30 miles an hour, and that the bell was not rung or the whistle sounded. A flagman stood at the crossing, facing the south. He had signaled two men who were going north following each other, driving teams drawing wagons upon which were empty hay racks, both of whom passed in safety. While such rigs were upon the westerly side of the crossing, proceeding north, the deceased was proceeding south on the easterly side; the rigs being between him and the approaching train. They were about 22 feet in length over all, and the racks were 4¿4 feet in height, with seats in front, and boxes over the rear wheels extending a foot higher. Thirty or 40 men employed by the Buffalo, Rochester & Pittsburg Railway Company were standing about the crossing, waiting for a train to take them to their work. As the deceased was going upon the north track, the first team was just leaving it. There were no trains, engines, or cars approaching the crossing or standing upon the tracks in that vicinity, other than the

“To the north of the crossing, near the east curb, and in front of the house shown in Exhibits 2 and 5, was the deceased upon his bicycle. At about this time he was observed to be looking. The flagman signaled the rigs to come across. Evidently relying upon the same signal, the deceased proceeded toward and onto the crossing. What the deceased did from that time on, so far as looking is concerned, does not appear.”

We think those facts do not tend to establish freedom from contributory negligence on the part of the deceased. It is urged, however, that the deceased was relieved from again looking to the west, and from attempting to make any further observation, because to do so would have been useless, from the fact that the two rigs referred to would have prevented him from seeing the oncoming train. The evidence wholly fails to support that contention. The deceased, who was 5 feet 10 inches in height, was sitting upon his bicycle in the ordinary way. There were no loads upon the wagons, and there was considerable space between the hind end of the first wagon and the team drawing the second as they proceeded over the crossing. We might almost take judicial notice of the fact that if the deceased, who was at the easterly line of the street, which was 68 feet wide, had looked over the top of the racks which were upon the westerly side of the street, he could have seen at least the smokestack and top of the engine as it approached. It will be remembered that the racks were only 4yí feet high—not higher than was the line of vision of the deceased. The evidence establishes that if the deceased, after he passed a point 5 feet north of the first track, had looked to the west, he could have seen the train approaching, and could have avoided coming into collision with it. There is nothing to indicate that the deceased listened, nor is any adequate explanation given by the evidence why he should not have heard the rumbling noise of the moving train. It is true, the evidence shows that the two teams and wagons were making considerable noise; but it is merest speculation to say that, notwithstanding, the plaintiff could not have heard the train if he had listened. Many—in fact, most—of the witnesses called testify that they did hear it, and heard it distinctly. Why the deceased did not hear it and heed it is not explained by the evidence. The plaintiff’s intestate did not look or listen after he passed a point a considerable distance north of the crossing until he reached

The cases cited by respondent’s counsel we think are not authority for the proposition that the facts disclosed by the evidence in this case, when considered most favorably to the plaintiff, tend to establish that the plaintiff’s intestate was free from contributory negligence. It is concluded that the plaintiff failed to sustain the burden imposed upon him by law of proving that his intestate was free from contributory negligence. It follows that the order appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Order reversed and new trial granted, with costs to appellant to abide event. All concur.