Caffi v. New York Central & Hudson River Railroad, 49 Misc. 620

Caffi v. New York Central & Hudson River Railroad

49 Misc. 620 | N.Y. App. Term. | 1905

Lead Opinion

Bischoff, J.

The plaintiff, while present at the defendant’s railroad yard, in the course of his employment by an independent contractor, was struck by the tender of a locomotive which, as he claims, had approached without lights or sign of warning, the accident having occurred in the night time and with more or less obscurity in the condition of artificial light. Ine issue of fact as to whether the tender carried a light, would seem to have been given too scant importance by the justice, so far as his stated grounds of decision would indicate. The defendant owed this plaintiff a duty of using reasonable care (Wells v. Railroad Co., 67 App. Div. 212), and the proof that lights were customarily placed upon approaching engines at this place would support an inference of neklieence from the particular omission* *621where no substituted warning was employed. The opinion^ however, is not technically a part of the record and we do not place our reversal of the judgment upon this ground.

A new trial should be had for error in the exclusion of testimony, sought to be elicited on redirect examination of the plaintiff, to explain his statement on cross-examination that he could see for a distance of two blocks, at the place of the accident. This statement, when made, by no means excluded the probability that he could not distinguish the dark bulk of an unlighted locomotive at that distance; nor that there was an obscured space, intervening between his position and the lights two blocks away, whereby nearer objects were less discernible than those upon which the distant light immediately fell. The explanation sought to be made was well within the scope of a redirect examination, and there is no apparent reason for the ruling which excluded evidence which was most relevant to the important question of the plaintiff’s exercise of ordinary care for his own safety.

The judgment is, therefore, reversed, and a new trial ordered, with costs to the appellant to abide the event.

Scott, J., concurs.

Dissenting Opinion

MacLean, J. (dissenting).

The judgment should be affirmed, in my opinion, upon the opinion and finding of the learned trial justice.

Judgment reversed and new trial ordered, with costs to appellant to abide event.