Donovan v. Long Island Railroad — 51 N.Y. St. Rep. 183

Majority

p. 183

James Donovan, Resp’t, v. The Long Island Railroad Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Negligence — Railroad crossings.

Plaintiff was injured on a winter evening at a crossing in the city by an

p. 184

engine which was running without a headlight or signals. It had no train and made little noise. Plaintiff testified that he looked and listened before attempting to cross, but saw no light and heard no bell. Held, that there was sufficient evidence to carry the questions of negligence to the jury, and that their verdict in favor of plaintiff would not be disturbed.

Appeal from judgment in favor of plaintiff, entered on a verdict, and from order denying motion for a new trial on the minutes.

E. B. Hinsdale, for app’lt; J. Stewart Ross, for resp’t.

This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the court

The action is for negligence. The plaintiff was struck and injured by one of the engines of the defendant while he was crossing the tracks of the railroad in Atlantic Avenue in the city of Brooklyn, for the purpose of taking a train on that road going westward towards the city of Brooklyn.

The appellant seeks to reverse the judgment upon the ground of contributory negligence of the plaintiff. The contention being that the testimony not only failed to show the absence of negligence on the part of the plaintiff, but did show the presence of such negligence.

In this case, as in many others of a similar character, the appellate tribunal is powerless. There is some evidence of care on the part of the plaintiff. He testified that before going upon the track he looked to see whether there was any engine approaching, and was very particular to look and see if he saw any headlight, and that he saw no light and heard no bell. That he looked up and down both and saw no light

That testimony was sufficient to carry the case to the jury upon that question and if it commanded belief it manifested care.

We cannot substitute our judgment for that of the jury.

We cannot, therefore, interfere with the verdict and the judgment and order denying the motion for a new trial should be affirmed, with costs.

As plaintiff has recovered the verdict, below, we must in discussing the appeal regard the testimony in the light most favorable to the plaintiff. That requires us to believe that defendant’s engine was propelled through a city street two hours after sundown, in the winter without a head light and without ringing a bell. On those facts the jury bad a right to find the defendant guilty of negligence.

The principal reliance of defendant on this appeal is upon the argument that plaintiff must, by the nature of the case, have been guilty of contributory negligence; that is to say, he would surely have seen or heard the engine had he exercised proper care.

The plaintiff testified that he carefully looked and listened and did not hear or see the engine, and he is corroborated by a witness who crossed with him at the same time and place, who also looked and listened and heard nothing.

The defendants ask us to disregard this evidence on the ground

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that it must be falsa It is plain that the jury must have given it credit.

How far it is possible to see a moving engine in a winter night would depend something on the degree of darkness, something on the rapidity of motion, somewhat on the acuteness of vision of the observer.

There being no train attached to the engine the ordinary roar of a train would be absent

Ordinarily trains moving through the streets in the night time give warning by head light and bell, and by the reverberation produced by a heavy train of cars. As these were wanting in the present case, and as the engines used for the rapid trains are extremely light and comparatively noiseless, the jury may have thought , the plaintiff’s testimony entirely credible.

It is said that as the engineer saw the plaintiff 200 feet away, the plaintiff should have seen the engine at an equal distance.

As the plaintiff came out'of a lighted cigar store and also into the illumination caused by the gas light at the crossing, he would doubtless be easily visible to persons 200 feet away in the darkness. But when his gaze was directed into the darkness it would not follow that he could see as far.

We are not able to say the jury were in error.

Judgment affirmed, with costs.

Barnard, P. J., concurs.