Conklin v. New York Central & Hudson River Railroad — 43 N.Y. St. Rep. 414

Majority

p. 414

Jane Ann Conklin, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

1. Railroad—Negligence—-Hand car.

To propel a hand car past a station at the rate of fifteen miles an hour on a down grade, without a hell or other notice, at an hour when passengers are about to gather to take a train, is negligence, especially when there is a freight train in front of the station to some extent obscuring the view.

'3. Same—Contributory negligence.

Where plaintiff's view of the track was interfered with by persons between her and the hand car and by smoke and steam from, the engine, she cannot be held guilty of contributory negligence as matter of law, but the question is properly one for the jury.

p. 415

Appeal from-judgment entered upon dismissal of the complaint at circuit.

Action to recover for personal injuries alleged to have been caused by defendant’s negligence. Plaintiff left her house to take a train on defendant’s road; passed in the rear of a freight train which was discharging freight at the station, and ■ in crossing the tracks to reach the station was struck by a hand car which was being propelled at the rate of fifteen miles an hour.

Hoffman & Comesky, for app’lt; AsKbel Green (Calvin Frost, of counsel), for resp’t.

No argument is required to show that to propel a hand car past a station at the rate of fifteen miles an hour on a down grade, without a bell or other notice, at an hour when passengers were about .to gather to take a train, was negligence.

The fact that a freight train was upon one track in front of the station discharging freight, and necessarily to some extent attracting attention and obscuring the view, renders the negligence more pronounced and striking. There is, therefore, no question as to the negligence of the defendant.

Upon the question of contributory negligence, it must be borne in mind that the plaintiff’s view of the track would be somewhat interfered with by the persons who were between her and the hand car. The smoke and steam of the engine would aid the obscurity, and all the incidents of a starting freight train would be liable somewhat to diminish the accuracy of plaintiff’s vision and hearing.

A hand car is not only nearly noiseless, but is not calculated to catch the sight.

Barnard, P. J., and Dykman, J., concur.

We do not think it can be said as a matter of law that the plaintiff was negligent.

Boll v. Adirondack R. R. Co., 22 St. Rep., 365 , was a hand car case, and we think well decided, and the court there point out the reasons why one might fail to discover a hand car, or to observe that it was in motion.

Under the rule in Massoth v. D. & H. C. Co., 64 N. Y., 524 , contributory negligence of plaintiff could not be assumed by the court. That question was for the jury.

Judgment reversed, new trial ordered, costs to abide event.