Woodard v. New York, Lake Erie & Western Railroad

—It is impossible to read the charge with which the learned trial judge submitted this case to the jury without a strong conviction that his judgment hesitated upon the verge of a non-suit which we think he should have granted. He may have believed that, with a- clear demonstration which he gave of the plaintiff’s failure to show directly or by reasonable inference that the conduct of deceased was free from negligence contributing to the injury, the jury would render an appropriate verdict upon the question as one of fact. The result, however, was, as commonly happens, in favor of the plaintiff; the case comes here on appeal from that conclusion.

There is substantially no dispute about the facts. Two tracks of the Erie railroad, one known as the Buffalo division main track, and the other as a western division main track, cross Oanisteo street, in the village of Hornellsville, at an oblique angle. North of the Buffalo track is what is known as the Osborn house switch, which leaves the main track at a point westerly from the street and crosses it nearly parallel with the main line, but leaving an open space between at the narrowest point of seven and one-half feet.

The plaintiff’s intestate and one Phelps approached the crossing carrying a basket of coal brought from Houck’s, and deceased was struck at the southerly rail of the switch, and when almost across it by one of the coal cars kicked down from the west and moving by its own momentum. The accident occurred in the middle of a bright and clear day when nothing existed to obstruct or hinder 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. The car and the man met at the intersection of track and of street. The highest speed of the former is put at four miles an hour, and if we call the walk of the latter as slow as one mile an hour, the cars moved four feet while he moved one; and when he was ten feet from the crossing they were but forty feet from the crossing and moving down upon it in plain sight If he was walking faster they were still nearer, and it is absolutely certain that at any time when within ten or fifteen feet deceased had only to

The evidence is very slight that either of them looked to the west at all after passing Grotty’s store. Phelps admits that he looked only while passing that store, and so at a time when he knew that he had not guarded against the danger of the shunted car likely to come upon the crossing at any hour of the day; but if they did look after passing that point, the inference is inevitable that they saw the cars coming and misjudged their ability to cross in their front. The case is one where ordinary prudence and care were not shown or inferable, and for which no excuse or palliation can be given.

For the theory that their attention was diverted by the passage of a train to the west on one of the tracks south of the switch, and the movement of some coal dumps on another, so far from being an excuse for not looking as they approached the switch is itself an omission of an act of ordinary prudence. It concedes that they did not look for cars approaching on the switch, and seeks to excuse the omission. If they did look after passing the store they saw the coal cars coming, and could not help it, and any excuse for not looking is immaterial. Nothing in their situation or surroundings made it their duty to watch a train passing on another track and rapidly clearing the crossing.

Looking at that could do no good and subserve no useful purpose, and did not effect or influence deceased’s action while approaching the switch, and the excuse amounts to this and this only, that a man may prudently step upon one track without looking to see if it is clear, because he sees cars on another track which do not menace his safety or affect his action. A passing wagon on the street, or a new sign on some building may equally have diverted his attention, but the fact in each case would only have shown his lack of ordinary care and prudence. The west bound freight train had merely left the crossing when deceased was struck, and constituted neither obstruction nor danger to his further passage. One does not approach a railroad track with senses alert and watchful when he suffers his attention to be needlessly diverted from the present and immediate danger. . To be an excuse, the object or cause which so diverts his attention must be something which can justify consistently with prudence, the withdrawal of

As has become quite common, the case of Greany v. L. I. R. R. Co. ( 101 N. Y. 419 ) is cited as authority to support the plaintiff’s judgment. That case was close enough upon its facts to invoke a considerable dissent, but decision turned upon features not here presented. There the plaintiff herself testified that her crossing was blocked by a train standing at a station, and she stopped waiting for it to move. Its presence affected her action and properly engaged some part of her attention. She further said that she stopped just as it started; that as she came up to the track she stood and looked both ways and saw nothing; as she took a step or two, and just as she did so, saw a train coming from the east, but so close that she could not escape. It was coming at a dangerous rate of speed. Here the coal cars were moving without an engine, at about four miles an hour, and the west bound freight was on the third track ahead of deceased, with two open places, one of seven and one of ten feet intervening, and clearing the crossing at a rate which left deceased’s progress entirely unaffected. The men were on foot, wholly masters of their own movements, and whether they looked or did not look as they approached the track, their conduct was negligent.

There was no question for the jury to pass upon and the plaintiff should have been nonsuited.

The judgment should be reversed and a new trial granted, costs to abide event.

Rapallo, Earl and Peckham, JJ., concur; Danforth, J., reads for affirmance; Ruger, Ch. J., and Andrews, J., concur.

(dissenting).—The action was to recover damages for injuries sustained by the next of kin of Philo P. Woodward, from one of the defendant’s trains having struck and killed Mm while on a public street in the village of Hornellsville. The case was submitted to a jury, and they found for the plaintiffs. The defendant moved at special term upon a case and exceptions for a new trial. It was denied, and, after judgment, the defendant appealed from the order denying a new trial and from the judgment, to the general term, where both were affirmed. It now appeals from the decision of the general term, and brings up for review the order and judgment.

In support of the appeal, the learned counsel for the appellant argues that the trial court erred, first, in refusing to grant a nonsuit when moved to do-so, “ upon the ground that the proof did not show that the deceased was free

The court, after calling the attention of the jury to the facts in evidence, so fully and fairly as to suggest to the defendant no need of alteration or addition, said: “The law required of Woodard in crossing that railroad that he should look in every direction from which danger was liable to approach, and if he saw a train of cars, or a single car “approaching him in such manner as to threaten him with collision, it was his duty to stop and wait for it to pass, or hasten his steps so as to cross before it reached him, and this he must do at his own risk. But the evidence is that these men did not see the cars that were approaching. The plaintiff has proved by Phelps that he did not seethe cars approaching; that after he passed the corner of the Grotty building, he turned his eyes in that direction, and did not see them approaching. What was the reason of that? The cars were approaching, and the atmosphere was clear, and his eyesight was good enough to enable him to perceive them. Was it because his look in that direction was before he arrived at the point from which he could see up the track to where the cars were? If so, and he did not look again, he was guilty of negligence, which would prevent Mm from recovering for any injury he received, unless there was something else to draw off his attention, at the time he might have seen these cars approaching.”

After some other remarks, he added: “ In discussing this, question, you are to inquire, did Woodard exercise that degree of care and caution for his own safety which a reasonably careful and prudent man would have exercised under the same circumstances. If that fact is established satisfactorily to your minds, a cause of action is made out, and the plaintiff is entitled to recover; if not, no cause of action has been made out.”

No exception was taken to this or any other exposition of law applicable to the evidence, but the defendant’s counsel at the close asked the court to charge the jury that the proof showed that the approaching cars which struck Woodard could be seen during the entire time he was crossing ten feet to the track, and-that he had ample opportunity to see them, notwithstanding the passage of the-other trains.

The court: “I think I have covered that ground. I have said that the cars were in sight during the time he was passing over those ten'feet, and unless there was something-else that distracted his attention, he was bound to have seen them.” Nor was there any exception taken to this statement. The learned counsel then requested the court to charge as matter of law “that there was no passage of

By the court: “As a general rule, that is so. Having looked at a distance of ten feet or fifteen feet from the rail, and not seeing an approaching train, would not relieve him from the responsibility of looking again. It is only for the jury to say whether there were circumstances which properly attracted and diverted his attention from the approaching cars.” And to this the counsel for the defendant excepted.

The propositions which allege error must stand or fall upon facts disclosed on the trial, and so require from us an examination of the entire evidence, for the contention of the appellant now is that no facts are established “from which the negligence of the defendant and the absence of contributory negligence on the part of Woodard could be legitimately inferred.” And this examination is to be made in view of the entirely well settled rule uniformly applied by the courts when the issue is one of fact and the case triable by a jury; that the question cannot be taken from them if the evidence in any reasonable view would warrant, a verdict, or, as was said in the recent case of Bagley v. Bowe, decided in this court March 25, 1887 (6 N. Y. St. Bep., 842), “if there is ground for opposite inferences, and a conclusion either way would not shock the senses of a reasonable man, then the case is for the jury, although the judge may entertain a clear and decided conviction that the truth is on this or that side of the controversy.”

It is difficult in many cases to distinguish between the province of the court and the province of the jury, but the hüjdicíal mind cannot be put in the place of the mind and ponscience of the juror without disturbing the fine which should separate the two and creating endless confusion. The opinion of one. person, however learned, cannot be substituted for the unanimous concurrence of twelve; and in this case, the question the trial judge- had to decide was not whether if he had been on the jury he would have found that there was negligence of the defendant and no negligence of the person killed, but whether there was evidence from which a jury might reasonably so find.

If as the appellant claimed by his motion for a non-suit, and his exceptions, and by this appeal, there was no dispute about the facts, was there not ground for dispute as to the proper inference to be drawn from them ? The

The facts as disclosed in evidence were as follows: The defendant’s road runs through the village of Hornellsville, in a south-easterly and north-westerly direction, and in so doing crosses with six tracks at an acute angle the most traveled street in Hornellsville, known as Oanisteo street. About noon on the day in question the decedent was north of the railroad, and on the west side of Oanisteo street at Houck’s coal yard, and with one Phelps left that place carrying between them a bushel basket full of coal for delivery at Phelp’s house, south of the railroad. They went in that direction along the west walk, the decedent being on the outside and having hold of the basket with his right hand, until both passed the northerly rail of the first track, and Phelps cleared the other, but Woodard was run into by two loaded box cars and thrown down, the brake beam caught him, and after going about thirty feet the cars lost their momentum, and when taken from under the wheel he was found to be badly injured and soon after died. Whether his death was caused by these injuries or was the natural result of the medical and surgical treatment he received, was one of the questions mooted by the defendant upon the trial. But it was submitted to the jury in a manner satisfactory to the defendant and the propriety of their verdict in that respect is now questioned. Whether the injuries were caused by the negligence of the defendant anc* whether the decedent exposed himself to danger voluntar* ily, are the only subjects of inquiry.

First. Was the defendant negligent ? Upon this inquiry very few words will answer. From a point about 250 feet west of the street crossing, and to a point east of it, the grade of the railroad is descending. The yard-master controlled an engine and by it so impelled the cars in question that when detached they had acquired such momentum as carried them rapidly down the descending grade. “The velocity,” says the defendant’s witnesses, “depends on the push from the engine. The purpose is to send the cars across the switch to the yard.” So it was this morning. The yard-master, who superintended the operation, said:

Great as are the privileges of the defendant, it has no right to carry on its business in such a manner as is likely to injure others. That it did so on this occasion is legally

The first branch of the plaintiff’s case, therefore, was established in the most conclusive manner, and although the defendant, as we have seen, went into evidence, there was no pretense of the slightest caution in its conduct of the. affair, or of any exigency which compelled its omission. As the case stands the death of the intestate can hardly be regarded as accidental, but the inevitable and natural result of the defendant’s method of business. Can we, with like assurance, hold there was not evidence .upon which the triors of fact could fairly say' the deceased exercised that ordinary care and prudence which the law required from him under the conditions and circumstances in which he was placed? We have nothing from his mouth. We know of him, however, that he was in the prime of life; that he had a wife and three children, with whom he lived and for whom he cared; that he was steady, sober and industrious, serving in the same employment for twelve years and losing no day until this injury; and while neither these conditions nor the character of the man which they imply can take the place of that evidence of the exercise of due care which the law requires from one going into a place of peril, they are for the consideration of the jury and do add to the weight of testimony relating to his conduct and tending to show that he did not bring the misfortune upon himself.

What was his conduct? From the coal yard whence he ' started he could* plainly see so much of the railway as intersected the street; he could see east of the street; but no further to the west than the west side of Grotty’s store, thirty-one and a half feet from the place where he was struck. At that point, by directing his eyes upon a line exactly at right angles with the store, he could take in fifty-seven feet more. But there was then in view, and directly in his way, the six tracks of the defendant. The first and second tracks, so far as could be seen, were unoccupied; on the third track a number of empty coal dumps, or cars were moving from the west, and a long freight train, or “train of boxcars,” drawing out “under pretty good motion ” going west at the rate of five or six miles an hour, or, as one witness thinks, fifteen miles an hour, was-on the fourth track, making the usual noise of a train in motion; its bell also was ringing

All such things tend to attract the attention of a wayfarer, and the decedent, whose way the trains obstructed, might lawfully, as he would naturally, turn his thoughts to them. He was of course bound as he approached the

The Crotty store came up to within six feet of the north or first track, and until you passed that point you could see only fifty-seven feet of the track west. Snyder was on Loder street north of the railroad, opposite Crotty’s block, the street intersecting Canisteo street; he was on the comer. He saw the men and the box cars overtake them. He was facing west, wanting to cross, but waiting for the westbound train to pass. Bennett was on the south side of the railroad and on the east side of Canisteo street. He also was waiting for the west-bound train to pass, that he might cross. He saw Woodard and Phelps and says: “As they approached the track there was a freight train coming up under pretty good motion, and they looked across and there were some coal dumps.” Q. Before they were struck by the car, did you see whether they looked around or not? A. When they approached near the track they cast their eyes over, as I should judge from the appearance of the men turning their heads and eyes. Q. Which way? A. Both directions. Q. Which directions? A. East and west. Asked by defendant’s counsel: “ Was it before or after the west-bound train had passed Canisteo street that you saw Phelps and Woodard looking up and down?” and answers, “It was before.” Asked: “When you saw these gentlemen looking around they were pretty near the door of Crotty’s store, about opposite?” Answered: “When they were looking at- the cars they were down pretty near the track, past the corner of the building.”

The cross-examination was protracted, testing with much detail the memory, steadfastness and observation of the witness, and conducted, after the Socratic method, with questions leading to the desired result, but closing as follows: Q. You were looking out for that west bound train when you came up ? A. No, sir; I was watching the switch engine; as they cut the cars loose I saw them and this train come up. Q. And you saw these gentlemen looking around ?

His absence on this occasion was notice that nothing of the kind was to be attempted, and a wayfarer, familiar with the conditions theretofore observed by the defendant in the use of the crossing, might naturally conclude that no use of the south track was then intended, nor any car about to pass, but if danger lay in one direction, equal danger must be apprehended in the other. Then there were the two moving trains, either of which threatened danger and served to attract the attention of the intestate. And we have the fact, sworn to by more than one witness, that he did look and observe, and was alert in the use of his senses. Nothing more does the law require from one intending or about to enter upon a place of danger. Was it negligence not to have seen the car by which he was hit in time to have stopped? It not only gave him no warning of danger, but the flagman, usually in attendance, and whose known duty it was to guard the crossing and furnish notice to the traveler at this most dangerous place —dangerous only by reason of such act of the defendant as is now complained of-—was absent, and this absence was an affirmative assurance of safety. On the third track there was the train of coal or dump cars coming from the west, and from the east, the long train, -with its locomotives making the usual noise, while from the first track there was nothing to be heard, nor any notice of approaching danger. The sense of hearing and the sense of sight might-naturally be diverted by the objects before him, and his watchfulness affected by reliance upon the discharge by the-company ef its duty to run its trains over the crossing with the usual signal and under the observation of a flagman. It may be presumed that on other and previous occasions care had been taken, and that this care was known to the , decedent, so that as he may be chargeable with notice that the switch was used by the defendant, it was notice that the use was under safeguards and precautions upon the continued use of which he had the right to rely. Not only the evidence, to which I have referred, established that the decedent looked before entering upon the track, but the argument of the appellant concedes it. He claims only that he did not look at the right time, “did not look after he could have an unobstructed view of the cars,” that is, while passing over a space of ten feet. This was a question for the jury. The time and manner of observation at a place of danger, on the part of a prudent and careful man, would

The elaborate briefs of counsel on this appeal seem to show little uniformity in the decisions of courts upon the questions here involved. It is not likely that there will be, for facts vary and inferences which are natural in one instance, would appear to be unreasonable in another. Yet one rule of action' runs through them all—precautions by a corporation where circumstances make a street crossing a place of danger, and ordinary care on the part of a wayfarer lest he encounter it. Here on the part of the defendant there was literally no precaution, but an absolute and unexplained indifference to the life and safety of the citizen. On this part there was at least an apprehension of danger and attention to his conduct in respect to it. Whether it was sufficient could be determined only by the jury. The specific proposition submitted to the trial judge shows upon what a narrow point the defendant sought to take it from, them. The motion for a non-suit was on the broad and general ground that the “ proof did not show that the deceased was free from contributory negligence.” The request subsequently made assumes that the proof showed that while passing over “ ten feet ” to the tracks approaching cars could be seen, “that as he then had opportunity to see them he was bound to do so.” In other words the claim is that “the law assumes not only that he did see them, but saw them in time to save himself, and as he did not save himself, his death was the result of his own want of care, and so not the result of the defendant’s negligence.” The proposition is not sound. It excludes most of the. circumstances which make such a crossing dangerous, and the presence of which demand the attention of a prudent person. It excludes the conduct of the defendant and the condition of things caused by it. It disregards rules well settled in this state in regard to the relative duties of a traveler and a railroad company. The crossing was dangerous only when the defendant made it so by propelling its cars across the street. It was permitted to do so upon giving certain statutory signals. It not only omits to give those signals at its peril, but the omission of those or other customary signals is regarded as an assurance by the company to the traveler that no engine is approaching from either side within eighty rods of the crossing, and he may rely upon such

A defendant, say the court, in the Ernst Case ( 35 N. Y., 39 ), “ cannot impute a want of vigilance to one injured by his act or negligence," if that very want of vigilance were the consequence of an omission of duty on the part of the defendant.” The jury might well find in words formulated in the case cited (supra), that the direct tendency of these omissions was to put the intestate off his guard, to disarm his vigilange and to produce a false sense of security.

It may indeed be that notwithstanding the omission of these signals and the absence of the flagman, he might by greater vigilance have discovered the approach of the c.ars, if he had foreseen a violation of the statute or the withdrawal of the customary guard, and whether in failing to do so he failed in' the observance of such a degree of care and diligence as men of ordinary prudence under similar circumstances usually employ was a question for the jury. He did look and listen. He did not go upon the track heedlessly. There were circumstances calculated to divert his attention from the first track, from which no danger was to be expected, to others which he had yet to cross, and it was impossible to say as a matter of law that he should have looked from some other point or in some other direction. Nor can it be said, as matter of law, that if he had looked at that other time, or from that other point, he could have seen the moving cars in time to escape. The law only declares that such a wayfarer must use his eyes and ears in view of all the facts and circumstances of the case as men of ordinary prudence placed in a similar situation would do, and the trial court did not err in submitting the case to the jury and leaving to them a consideration of all the facts likely to influence his conduct and so determine whether they were such as demanded his attention or as-distracted it. In Ernst v. Hudson River R. R. Co. (supra), those questions are discussed with great fullness and similar conclusions reached. They have been repeatedly applied by us to other cases referred to by the respondent’s counsel, and they need not be cited here.

But the general propositions which the appellant makes are both answered by the more recent case of Glushing v. Sharp, Receiver of R. R. Co. ( 96 N. Y., 676 ), where in an. action for injury, at a crossing the omission of signals and the action of the gate keeper were held conclusive as to the-negligence of the defendant, and the court says: “The evidence shows that no bell was rung or whistle blown and that the gate was raised, and thus the carelessness of the defendant was established. But the claim of the defendant'

So it was decided in the Greany Case ( 101 N. Y., 420 ), following the Glushing Case, and in Sherry v. N. Y. C. & H. R. R. R. Co. ( 104 N. Y., 652 ; 5 N. Y. State Rep., 574). In view of these decisions are the general and well settled rules of law which these cases only reproduce and illustrate. The trial judge committed no error in refusing to take the case from the jury and submitting it as he did under proper directions to them. Another tribunal whose duty it also was to examine the facts as well as the law has affirmed the decision made by the trial court. I find no ground on which the judgment of these courts should be reversed. It should, I think, be affirmed.

Ruger, Ch. J., and Andrews, J., concur with Danforth, J.