213 A.D. 526 | N.Y. App. Div. | 1925
On a former appeal by this defendant this court expressed its views upon the law and the facts as then presented (200 App. Div. 247). There is little, if any, difference in the evidence, except that the plaintiff did not call the two experts used upon the former trial, but in place thereof did call one "witness, Dettman. Briefly, the intestate crossed open land, climbed the railroad embankment to the tracks and proceeded along the tracks to cross threé bridges, one seventy-eight feet, one one hundred and eight feet and one sixty-one feet in length. No public way led to the defendant’s tracks. On these bridges was no place of safety for a pedestrian while a train passed and only the ties on which to walk. In choosing this dangerous course the intestate was taking all the chances of danger and was negligent of her own safety; she was a trespasser on defendant’s right of way; printed signs warned her and all others against walking on the tracks; the statute forbids it. (Railroad Law, § 83.) As in the former opinion held, the defendant owed her no duty save to do her no intentional, reckless or wanton injury; and it is conceded that this rule applies to this case.
The defendant was not negligent if the view along the tracks ahead of the train was obscured by an overhead bridge, or by curves and intervening obstructions; nor was it negligent if its
It was only after the engineer discovered the trespasser on the tracks that any duty as to her fell upon the engineer in this case. There was a railroad embankment and overhead crossing of the defendant’s track about 1,000 feet westerly of the bridges plaintiff’s intestate was crossing when injured. This overhead bridge is called “ T-37.” As the track passes under T-37 it curves to. the left. The engineer was on the right-hand side of the engine and was looking for his “ clear way ” signal for Green Island. The fireman was on the left-hand side; he first saw the intestate and called to the engineer, who then looked and saw her. No negligence can be predicated on the fact that the engineer did not see her sooner. The plaintiff called the engineer as a witness and thus vouched for his integrity. • (Potts v. Pardee, 220 N. Y. 431; Freebold v. Town of Glen, 211 App. Div. 249.) There is nothing in the engineer’s testimony which is inherently improbable; there is no attempt to contradict his testimony, save as to the sounding of the whistle when he saw the intestate on the bridge. To contradict his testimony and the testimony of three of defendant’s witnesses in this respect,, only negative evidence was given and, as stated in our opinion on the former appeal, the plaintiff’s negative evidence as against the defendant’s positive evidence did pot present a question of fact for the jury. (Matutinovich v. N. Y. C. R. R. Co., 182 App. Div. 451; Foley v. N. Y. C. & H. R. R. R. Co., 197 N. Y. 430.) We may accept his statements as to what he did as expressing the truth. (Carlisle v. Norris, 215 N. Y. 400.) The engineer testifies that, when he first saw the intestate, she looked to him to be near the center or easterly end of the bridge; as soon as he saw her he sounded the whistle and simultaneously moved his brake lever to “ service ” and immediately, practically
In our former opinion we considered a number of errors in rulings by the court and, although we found that the evidence disclosed no negligence, on account of the errors, we reversed the judgment and granted a new trial, giving the plaintiff another opportunity to furnish evidence sufficient to sustain a charge of negligence. Upon the second trial the plaintiff has again failed.
All concur.
Judgment and order reversed on the law and complaint dismissed, with costs..