Burns v. Delaware & Hudson Co.

At Troy, the defendant and several other railroad companies used the Troy Union Railroad Company’s passenger station, that company having control of the station and tracks and the direction and dictation of -the movement of trains into and out of the station, and the place they shall occupy, and the time when they shall enter and leave the station. The station occupied the entire space between Fulton street and Broadway, and there were seven of its tracks running through the station and across Fulton street. The defendant’s engine, with a passenger train attached, was in the station to receive passengers for its trip north at 5 o’clock, and took its position in the station at the time and place required by the station company, and occupied the whole space from Broadway north, the pilot of its engine extending over the line of Fulton street and into the street, some of the witnesses say 4, 5 and 6 feet, and some say half-way across the street. The street was 60 feet wide, of which feet was sidewalk on either side, and the remaining 35 feet was the traveled portion of the street; the whole street was planked; there was no curb, and nothing really to distinguish between the sidewalk and the roadway itself. The defendant’s train occupied track No. 3; the Boston & Maine train, of great length, was preparing to leave the station, but was in two parts, the engine and some of the cars being on track No. 6, the other cars upon track No. 4, and its engine also extended .some distance into Fulton street. The plaintiff was working in Fulton street on track No. 7, with his face somewhat towards the defendant’s engine, but looking down at his work. A horse and wagon approached rapidly

The court charged the jury that there might be a recovery if the automatic air pressure was not properly controlled and thus caused the fright, or if the horse was frightened at the engine and it had remained in the street for over five minutes. It is only necessary to consider the latter subject, as the charge, which was properly excepted to, did not present that matter correctly to the jury. The court at first states that the plaintiff claims one act of negligence is “by permitting the engine .to stand in a public street for an unreasonable length of time, for a time to exceed five minutes,” and later, “I will later charge you as to the effect of permitting his engine to stay over the five minute limit,” and later, “As I said before with regard to the engine, if you find that this engine stood in this street to exceed five minutes, and that its presence there was unreasonable, and you may assume that it was unreasonable because of the terms of this statute, and that this horse took fright because of the presence of this engine in the street, and that that fact was the cause of this injury, then you may find that the defendant was guilty of negligence upon that account, and render a verdict in favor of the plaintiff.” And later: “Was the defendant negligent in the operation of its air compressor? Or, was it negligent from, having this engine standing in this road to exceed five minutes ? If you find that it stood there for less than five minutes you are not warrayed, and I charge you that you must not find it guilty of negligence because of that.”

At the close of the charge the following took place between the court and the appellants’ counsel:

“Mr. Carr: I also except to that part of your honor’s charge in which you say if the engine was there more than five minutes then you may find that the defendant was guilty of negligence. Of course I haven’t said it all, but it is what your honor said in that connection. It is the submission of that question to the jury to find as a fact that the company was guilty of negligence assuming the engine was there for more than five minutes. The Court: Whatever I said on that subject I give you an exception-to.”

The court evidently had in mind the provision of Pen. Code, § 481, which provides that:

“Any officer or employe of a corporation, in charge of a locomotive, train or car", who shall wilfully obstruct, or cause to be obstructed, any farm or highway crossing with any locomotive, train or ear, for a longer period than five consecutive minutes is guilty of a misdemeanor.”

The engine was concededly over the street line and in the street for some distance at least, and had been there over five minutes. There was clearly enough room remaining in the street for the passage of an ordinary vehicle in front of the engine. Viewing the matter in its most favorable light to the plaintiff, there is a question of fact to be submitted to the jury whether this engine obstructed the street and-whether it was a willful obstruction, and whether such obstruction caused the injury. The charge as made permitted a recovery from the mere fact that the engine extended some distance beyond the street

As matter of law it cannot be said that an engine extending into the street as this engine did was negligence of the defendant. Vandewater v. N. Y. & N. E. R. R. Co., 135 N. Y. 583 , 32 N. E. 636 , 18 L. R. A. 771 ; Petrie v. N. Y. C. & H. R. R. Co., 66 Hun, 282 , 21 N. Y Supp. 159 ; Scaggs v. President, etc., D. & H. Co., 145 N. Y. 201 , 39 N. E. 716 .

The provision of the Penal Code does not purport to charge a duty upon the company, but punishes the train officials for a willful violation of the section. If an engine remains in a public street in violation of this statute, that fact, with other circumstances, may tend to show that the defendant is negligently occupying the public street. The violation of a statute may be shown as a fact tending to establish negligence, but its mere violation by the engine crew does not make the railroad company liable for everything that happens at the time of the violation; to charge it with liability the facts making the violation must cause the injury, and here when a horse is being rapidly.driven across a railroad track and becomes frightened by an engine standing there and runs against the plaintiff, it is difficult to see how the injury is caused or contributed to by the fact that the engine had remained in that position for over five minutes before the horse come in sight. In this case, if the engine had arrived at the street just as the horse was crossing, the accident would have happened in the'same way, but no liability could then be claimed, and it must be quite immaterial how long the engine had' been standing there before the horse came up. In Laible v. N. Y. C. & H. R. R. Co., 13 App. Div. 574 , 43 N. Y. Supp. 1003 ; Id., 162 N. Y. 622 , 57 N. E. 1114 —the freight train had blocked the crossing for 20 minutes, detaining the plaintiff’s restless horse there for that time, and the horse finally became frightened and the accident occurred. Different trains of the defendant were upon three sides of the plaintiff and hemmed her in, and the position was dangerous. There it was held a question of fact for the jury whether or not the unreasonable time the train blocked the street was negligence and contributed to and brought about the accident. Here the presence of the engine the moment the horse approached caused the trouble; its presence for five minutes before had no effect on the horse.

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