Sherry v. New York Central & Hudson River R. R.

The learned counsel for the respondent, at the opening of this argument, conceded that he was bound to assume, for all the purposes of the case, that upon the occasion in question th$ defendant omitted to give the statutory signal of its approach. It was therefore in fact and in law guilty of negligence. But although the bell was not rung or the whistle sounded, it was still the duty of one traveling on the street crossed by the railroad to exercise due care and diligence to discover whether a tram was about to pass, and if she failed to do so, or if, seeing the approaching train, she nevertheless undertook to cross, she was guilty of negligence, and, in either case, if injured, so contributed to the accident that she can have no just cause of action. To determine, however, whether a complaining party is within this rule of exclusion, or whether her conduct in a given case 'was consistent with reasonable and ordinary care, all the circumstances surrounding the transaction are to be examined. Usually, therefore, the question is for the jury, and only in exceptional cases can the court answer it. The court may dispose of the case ; and it is its duty to do so when no facts are in dispute, or any weighing of testimony necessary.

The cáse before us was disposed of by the trial judge as one of that character, and the appeal questions the correctness of his decision. The appellant here was plaintiff in the action. Her intestate, Charlotte Briggs, was struck and killed by the defendant’s locomotive engine at the railroad crossing of Fifth street, in the village of Little Falls, between 2 and 3. o’clock in the afternoon of October 4,1883. The railroad of six tracks crosses the street upon a curve, but nearly at right angles. It afforded protection by neither flag-man nor gate, and, upon the occasion in question, its train came from the west upon the crossing, out of time, at the speed of 30 miles an hour, sounding neither bell nor whistle, and, so far as appears, without other warning of its approach. Between Fifth street and the west were various obstructions to the view, a ledge of rocks separating two of the tracks from the other four, and the fences of a cattle-yard extending up to the west line of Fifth street. On this occasion there were also box ears of the defendant upon a side track, just Avest of the crossing, and which cut off the view until the the wayfarer had actually reached the main track. The curve was of such a radius that although, when on the tracks, a person could, according to her position, see an approaching train at a

The woman came along Fifth street to the crossing, passed over two tracks and through the intervening space by the box cars to the most northerly, or fourth, of the four tracks, and, passing on, had reached No. 1, or the most southerly, when she was struck and kiñed. In deciding the motion for a nonsuit the court held that, under the circumstances in evidence, it would be a question for the jury whether “ she may not have exercised her hearing — may not have listened, — and still not have heard the train; that whether she could have seen the train from the open space, or from the most northerly of the four tracks, was also for the jury,” saying “ upon the evidence here, the jury would have a right to find that there were box cars there, and that her view was impeded somewhat by those, so they might find she could not see upon the track until she passed to the southerly edge of that siding, or stepped over the rail.” Nor did the learned judge think that it could be said as matter of law that she did not look while on the railroad after passing the point up to which she could not see. From that point where the view was unobstructed by the box cars across the road to the rail of track No. 1, — where she was killed, — was thirty-two feet and two inches. It was covered by the defendant’s tracks. She was upon them, and the argument is that, if she looked, she must have seen the approaching train, and during that time had the ability to save herself by keeping off the track No. 1. “ I am hardly willing,” says the learned judge, “ to say that, whether she looked or not, might not be a question to the jury. What I do think is that she had no right to pass over that thirty-two feet and two inches, and go upon that track, with the train in full view coming towards her; and when she did it, she did it either from a thought that she could get over in safety before the train struck her, or made a miscalculation; and, if she did, that is negligence, because, when she saw the train coming, her duty was not to attempt to get past before the train came, but to wait, — and, if she took the chances, she took the chance of her death, without holding the defendant liable.”

Upon this ground the nonsuit was granted, and upon this ground the learned counsel for the' respondent contends that it should be sustained. Certainly, upon the evidence there is no other. In approaching the railroad, and entering upon its group of tracks, the jury might well find that the traveler exercised as much diligence as a prudent person would exercise under the circumstances, having regard for her own safety and fairly endeavoring to perform her duty. This, under the rul

There is other evidence bearing upon these circumstances/ and, in reviewing the propriety of a nonsuit, the appellant is

We think the court erred in taking the case, from the jury. The judgment should therefore be reversed, and a new trial , granted, costs to abide the event.

(All concur, except Earl, J., taking no part.)