Majority
p. 663Sophia Oldenburg et al., Adm’rs of Charles Oldenburg, Resp’ts, v. The New York Central & Hudson River R. R. Co., App’lt. (Superior Court of Buffalo, General Term, Filed October 30, 1890.)
Headnote
Negligence—Railroads.Plaintiff’s intestate was injured while crossing defendant’s tracks in Buffalo. There were cars standing at that place which obstructed the view of the tracks and extended over the walk. Deceased waited for a train to pass, and when the gates were raised started to cross. The gate-man, who was on the other side, started to lower the gates and called to deceased, as he testified. Deceased passed the standing cars and was immediately struck by the tender of an engine which was backing rapidly. Held, that whether, under the circumstances, deceased exercised proper care was a question for the jury.
Appeal from order denying motion for a new trial and from judgment in favor of plaintiff.
Charles Oldenburg, the plaintiff’s intestate, while attempting to cross defendant’s tracks in Chicago street, in the city of Buffalo, was killed by being struck by the tender of an engine backing rapidly. There was a train of standing cars occupying the middle track and extending half way over the sidewalk, cutting off the view of the further track. Deceased waited for a train to pass, and the gates being then raised, started to cross. It was impossible for him to see up the third track until he had passed the car that extended over the sidewalk. The gateman then started to let down the gates, and testifies that he called to deceased, who kept on and was struck by the tender. The cars and the tender projected so that there was only two feet of space between them. The court refused to direct a verdict for defendant and submitted the case to the jury, which rendered a verdict for the plaintiffs.
Henry H Warner, for resp’ts; McMillan, Gluck & Pooley, for app’lt.
This is an appeal from an order denying a motion for a new trial and from a judgment entered on the verdict of a
p. 664
jury. We think the questions raised in this case were properly disposed of by Judge Beckwith in his opinion on the motion for a new trial. The question of the negligence of the plaintiff’s intestate, and whether, under all the circumstances of the case he acted as a reasonably prudent man would have done, was properly left to the jury. It is manifest that by reason of the dead cars standing on the middle track, close up to the sidewalk, his view of the approaching engine was obstructed, and he could not with safety have stopped, after passing these cars,., to look. The space between the standing cars and the cross-bar of the tender was little " more than two feet, and whether, in the confusion caused by the noise of passing trains and the hallooing of the gateman, not knowing from whence the immediate danger could be expected, he acted with due care, was a question for the jury to determine.
The judgment should, therefore, be affirmed, with costs.
Hatch, J., was for affirmance for reason stated as above, and upon the opinion of Beckwith,'Ch. J., in denying motion for new trial. Beckwith, Oh. J., did not sit.
Footnotes
- 1 Affirming 29 N. Y. State Rep., 836.