201 A.D. 191 | N.Y. App. Div. | 1922
This action was brought to recover for damage to plaintiff’s automobile which at seven-thirty-four p. m., on the 16th day of January, 1921, while driven by plaintiff’s chauffeur and carrying two passengers for hire, came into collision with a west-bound passenger train of the defendant on a grade crossing at Carman in Schenectady county. The complaint charged that the crossing gates were left in an upright position as the automobile approached “ and thereupon the defendant, having the said bars in an upright position, notified him that he could cross the said railroad tracks in the said automobile with safety, and then, as he was proceeding with due caution to cross the said tracks, the defendant wrongfully and unlawfully propelled its train of cars with great force and violence across the said public highway at high rate of speed and wrongfully ,and unlawfully collided with the said automobile and utterly destroyed the same.” No act of negligence is charged, but the case was tried upon the theory of negligence, in that the upright position of the gates was an assurance of safety and that no other adequate warning was given by whistle, bell or other signaling device or by a flagman at the crossing. There was positive testimony that the headlight "of the engine upon defendant’s train, a powerful electric light, was lit, that the usual crossing
The defendant introduced testimony tending to show the inability of the gate tender to lower the gates because of the pressure of the wind upon them which it was claimed had been blowing with great intensity for too short an interval of time to charge the defendant with negligence in not having adopted some other means of warning. According to the defendant’s own theory upon the trial, however, the failure of the gates to operate did not proximately contribute to the accident. It was the theory of the defendant that the gateman was standing upon the crossing swinging a lantern at the time that the plaintiff’s automobile approached the crossing. The court properly charged the jury that if he was out there on the' crossing giving such signal “ nothing more could be required on the part of the plaintiff’s chauffeur to have notice and stop.’’ There was a conflict of evidence as to whether the gateman was present on the crossing acting as a flagman. The theory of the plaintiff was that he was not there. Upon this conflict of evidence the case was properly submitted to the jury on the question of the defendant’s negligence.
We are left in some doubt as to whether the plaintiff’s chauffeur was guilty of contributory negligence as a matter of law under the authority of Avery v. N. Y., O. & W. R. Co. (205 N. Y. 502). It was the duty of the plaintiff’s chauffeur to exercise vigilance notwithstanding any omission on the part of the defendant to give the usual warning or other adequate warning of the approach of its train. Such omission “ may tend to throw one off his guard; but it does not justify the non-observance of ordinary care on his part.” (Avery v. N. Y., O. & W. R. Co., supra, 506.) The plaintiff’s chauffeur testified that when he was two or three feet from the outer rail of the crossing he glanced both ways and seeing no train approaching, proceeded at the rate of about fifteen, miles an hour and continued to look straight ahead while he crossed five tracks before plunging into the defendant’s train. The plaintiff’s witnesses estimated this distance to be about fifty or sixty feet. The defendant’s witness indicated by scaling a map that the distance was ninety-two feet. It is clear that the defendant’s train could have been seen approaching during the entire time that the plaintiff’s chauffeur was crossing this intervening space, unless his view was obstructed by the presence of a freight train which one of the
Our attention, however, has been called to reversible errors upon the trial. The case was started before two different juries upon the same day. On the first trial during the opening for the plaintiff, his counsel stated that the defendant had settled with one of the passengers in the automobile, Mrs. Risendorph, submitting that as an excuse for not calling her as a witness on behalf of the plaintiff. Thereupon the court properly granted defendant’s motion for a withdrawal of a juror against plaintiff’s opposition and exception and declared a mistrial. On the second trial commenced the same day he committed the same error. He offered a stipulation and order of discontinuance in evidence and upon objection being raised, plaintiff’s counsel described the paper as a settlement and urged that such settlement satisfactorily excused the plaintiff from calling her. The court properly sustained the objection but refused to grant a motion for mistrial. He did, however, make an earnest effort to overcome the effect by carefully instructing the jury to ignore it. Plaintiff’s counsel excepted to that and requested a special instruction that “ under the circumstances ” the jury could not draw any inference against the plaintiff for the failure to call Mrs. Risendorph; and when the court so stated to the jury and, in his effort to neutralize the effect of reference to the settlement, the court stated that the defendant also was not bound to call her, plaintiff’s counsel again offset the effort of the trial justice by remarking: “ We except to your honor’s remark that the defendant is not bound to call her under the circumstances.”
We think that the defendant’s motion for the withdrawal of a juror should have been granted a second time. The defendant had the right to purchase its peace with Mrs. Risendorph without
We are likewise convinced that the learned trial justice was in error in refusing the request to charge "that no negligence could be predicated against the defendant on the speed of the train alone. The engineer did his full duty under the circumstances of this case if his headlight was burning, if his automatic bell was ringing and if he sounded the crossing whistle at the whistling post. There was no proof that he violated any duty that had any relation to the condition which was shown to have existed at this crossing. He had no knowledge that the gates were not working and the
The judgment and order should be reversed and a new trial granted, with costs.
All concur.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.