Collins v. New York, New Haven & Hartford Railroad — 4 N.Y. St. Rep. 874

Majority

p. 874

Bridget Collins, as Adm’r, Resp’t, v. New York, New Haven and Hartford Railroad Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

Negligence at railroad crossing—When for jury.

Where there was a conflict of evidence as to the possibility of intestate’s seeing the approach of the train by which he was killed, and as to whether the signals required by law were given: Held, that it was properly left to the jury, and that their verdict will not be disturbed.

Appeal from a judgment entered on a verdict in favor of the plaintiff at the circuit court of Kings county and f 'om an order denying a motion for a new trial on the judge’s minutes.

This action was brought to recover damages for the" death of plaintiff’s husband resulting from injuries received at defendant’s railroad crossing on the West Farms high road in Westchester county. The intestate Thomas Collins was driving a carriage and span of horses at an ordinary gait on the 11th of February, 1885, along the West Farms road which crosses the defendant’s tracks at a very acute angle. For some distance before reaching the crossing where the accident occurred the defendant’s tracks

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descend by a heavy grade through a deep rock cut in which they cannot be seen from the highway until they emerge within a few feet from the crossing. At the time of the accident the triangle between the railroad and the highway was, according to plaintiff’s proof, entirely overgrown with a thick growth of trees and bushes varying from five to twelve feet in height running along by a stone wall and extending from the top of the bluff quite down to the track itself, so that by a traveler descending the hill to the crossing as Collins was doing, a tram approaching from the north, as the one in this case was, could not be seen at all until he was right upon the crossing. This was disputed by defendant who had had the trees and bushes cut down since the accident. One driving a carriage, in order to obtain any view towards the north, is obliged to look over his shoulder and behind him. There was considerable evidence that the whistle was not blown nor the bell rung as required by law, but this was disputed by defendant. There was no flagman kept at this crossing. And there was evidence that Collins was seen trying to see if there was a train.

William E. Barnett, for app’lt; Frederic W. Adee, for resp’t.

The husband of the plaintiff was killed by a collision with a train of cars on the defendant’s railroad at a highway crossing in the town of Westchester in Westchester county and this action is for the recovery of the damages she has sustained by reason of his death.

A trial has been had and the plaintiff has received a verdict for $5,000 and the defendant has appealed from the judgment.

The negligence charged against the defendant was the omission to sound the whistle or ring the bell of the locomotive for the highway crossing where the accident befell, and there was testimony competent for the consideration of the jury to sustain the claim and there was also testimony tending to show a compliance with the requirements of the statute in that respect.

It was also charged against the plaintiff that her deceased husband contributed negligence which aided in bringing on his misfortune, and upon this allegation there was testimony also, but the question respecting his negligence depended mostly upon inferences to be drawn from facts and surrounding locations and circumstances, and so at the close of the testimony on both sides the case was one eminently proper for the jury, and it was given to that body in a charge which was free from error.

Being so, the case is one presenting but little scope for the

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interference of an appellate tribunal. If the jury found the facts and drew the inference, in favor of the plaintiff as we must now assume, then the verdict is sustained and we cannot disturb the same for want of proof.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.