Wilbur v. Delaware, Lackawanna & Western Railroad

The railroad of the defendant, at or near its station at Lowmanville, in the county of Chemung, crosses at nearly right angles a highway which runs nearly north and south. On the 8th day of April, 1893, Mr. Wilbur, the plaintiff’s intestate, in company with one Gardner, was passing northerly along this highway in a one-horse covered buggy. Mr. Wilbur sat on the right-hand or easterly side and was driving. The day was cloudy and rainy and the top of the buggy was up and the side curtains down. It was about five o’clock in the afternoon. The road of the defendant there has two tracks, the space between the two being about eight feet. As Wilbur approached the crossing, and about twenty-five feet from it, he stopped and waited for the passage eastwardly of a long freight train on the south or east-bound track. After this train passed by he drove on, and as he was crossing the north or west-bound track he was struck by a train going west on the north track and both he and Gardner were killed. The train was a fast one, going, according to some of the evidence, at the rate of over sixty miles an hour and was behind time. It was known as No. 3 and called the flyer. The plaintiff gave evidence tending to show that no signals were given of the approach of the train, no whistle blown or bell rung. Evidence to the contrary was given on the part of the defendant. An issue in this respect was presented for the jury to decide, and the verdict in this respect should not be disturbed. Whether the defendant was negligent was a question of fact.

The' question of contributory negligence is strongly pressed.

The question of contributory negligence was, we think, for the jury to decide. (Greany v. Long Island R. R. Co., 101 N. Y. 419 ; McNamara v. N. Y. C. & H. R. R. R. Co., 136 id. 650; Weber v. N. Y. C. & H. R. R. R. Co., 58 id. 451; Parsons v. N. Y. C. & H. R. R. R. Co., 113 id. 364; Sherry v. N. Y. C. & H. R. R. R. Co., 104 id. 652; Borst v. Lake S. & Mich. S. R. R. Co., 4 Hun, 346 ; Miller v. N. Y. C. & H. R. R. R. Co., 82 id. 164.) The deceased was bound to make all reasonable effort to see, that a careful, prudent man would make under like circumstances; he was not bound to provide against any certain result. (Shaw v. Jewett, 86 N. Y. 617 .) In the Greany case (p. 427) it is said of an occurrence, similar in some respects to the present, that whether the party “ looked exactly at the right moment, or in each direction in proper succession, or from the place most likely to afford information, cannot be determined as matter of law, and whether upon the whole, and in view of all the surrounding circumstances, including the negligent conduct of defendant, she exercised due care, was a question which the trial court could not properly decide for itself, but was bound to submit to the jury as one which they alone could answer.” In the McNamara case it was said (p. 653): “ It was

In this case whether the deceased, in. the exercise of reasonable care under the circumstances, should have seen the train in time to have avoided the accident was a question of fact for the jury.

Upon the question of contributory negligence it is claimed by the defendant that improper evidence was received. It was shown by plaintiff, without objection, that at the time of the accident there was no flagman at the crossing. It was then shown by a witness named Pierce that two or three weeks before the accident he had driven over this crossing with Mr. Wilbur about the time this train No. 3 passed through west. The question was then asked: “Was there at that time a flagman at that crossing ? ” This was objected to by the defendant as immaterial and inadmissible, and the court held it was admissible on the question of contributory negligence, and overruled the objection, and defendant excepted, and witness" testified that, within the view of witness and of Wilbur, there was a flagman at that crossing for that train.

In McNamara v. N. Y. C. & H. R. R. R. Co. (supra) a flagman stationed at a crossing whose duty it was to warn persons approaching of danger, was absent from his post at the time of the accident, and it was in effect held that this was a circumstance to be considered on the question of the contributory negligence of one accustomed to pass at that point, the court saying that the deceased “ had the right to rely upon the pi-esence of the flagman to warn her of any danger, and she had a right to assume that trains would not be operated at such a place with such an unusual rate of speed, and that proper signals would be given to persons using the street of the approach of a train by ringing the bell and sounding the whistle.” The defendant claims that the case of McGrath v. N. Y. C. & H. R. R. R. Co. ( 59 N. Y. 468 ) is in point against the relevancy of the evidence. In that case, as said in the opinion at page 412, “ There is no ground for imputing any negligence to the plaintiff upon the evidence in the case, unless he omitted to look for the approaching train before he crossed the railway, or undertook to cross the track in advance of the train after seeing it.” It was held

In Dolan v. Del. & Hudson C. Co. ( 71 N. Y. 285 ) the absence of the flagman is stated to be one of the circumstances to be considered on the question of the negligence of the plaintiff. In Sullivan v. Tioga R. R. Co. ( 44 Hun, 304 , 311) it was held competent to prove on the question of contributory negligence that the defendant failed to observe its rule as to the ringing of the bells of locomotives in its yard.

But it is argued that there is no proof that it was customary for the defendant to have a flagman at that crossing. There was no proof on that subject either way, except as it may be inferred from the evidence of the witness Pierce above referred to. The evidence was not objected to on that ground. The material question was, what knowledge did the deceased have of the situation, as he approached on the day of the accident, that would properly bear on the amount of care he should exercise ? He had been there shortly before at the time this train passed, and a flagman was there. It cannot be said, as in the case of Whalen v. N. Y. C. & H. R. R. R. Co. ( 58 Hun, 431 , 433), cited by the counsel for the defendant, that the deceased knew it was not the habit of the company to have a flagman there. He did not live in that vicinity, and we cannot assume that he would know the custom of the company on the subject. That he had in fact been there recently before was, we think, competent and its weight was for the jury to determine. The counsel for the defendant claims that the court in its charge permitted the jury to give undue effect to the circumstances of the absence of the flagman. The question as finally left to the jury on that subject was “ whether, taking the circumstances as they there existed, including this fact, he acted as an ordinarily prudent man in proceeding to cross as he did.” This, we think, correctly presented the question, and, in view of the prior discussions between court and counsel, it

We find no sufficient ground for reversal.

Hardin, P. J., and Martin, J., concurred.

Judgment and orders affirmed, with costs.