40 N.Y.S. 730 | N.Y. Sup. Ct. | 1896
The'plaintiff recovered a verdict of $2,580 for the negligent killing of. her deceased husband. The defendant moves to set aside this verdict, on the ground that it is against the weight of the evidence, amongst the other reasons urged for a new trial. The ground of negligence charged, was the absence of proper warning of the approaching train which killed the intestate. The intestate was proceeding to cross the track from the south. The train came from the east on the third, or farthest track from the intestate’s point of entrance upon the railroad. The jury had a right to find that on the first track, which' was- a switch track, cars stood at the right and left of the passageway,- which partially hid the approach of a train, but the other two tracks were clear of standing cars, and about twenty feet intervened from the point of clear vision, both ways, before the horse could reach the track on which, the engine struck him. The horse was proceeding upon a walk.
Hnder the evidence, the jury had a fair right to -find, if that evidence satisfied their minds, a verdict of negligence against the defendant, if proper signals'were not given to warn approaching travelers over the passageway. Was the evidence offered by the plaintiff sufficient to justify a jury, acting within their undoubted province of determination, to find that signals were not given?
For the defendant, the foreman of a gang of laborers, at work on the track, five to six hundred feet from the crossing, the conductor of the train, the engineer, the 'fireman, a flagman on the train, a trainman and a brakeman, each distinctly testify to "the ringing of the bell and the blowing of the whistle, and, in addition, a blacksmith working adjacent to the track, not connected with the railroad company, also testified to hearing the whistle.
Aside from' this affirmative testimony,, which -was strengthened •to some extent by a reason for recollecting- on the part of some of the defendant’s witnesses, furnished by the presence of the group of laborers at work on the very track on which the train- had to approach the crossing, is the almost conclusive presumption afforded by that very fact of the laborers at work upon the track. To reach the crossing where the intestate was killed, from the point 'where the whistle should blow and the bell should ring, it was necessary to pass that very group, and a signal-given to warn them wouldj undoubtedly, be a signal to those on the. crossing itself. This group of laborers was in plain sight for one-half a mile or more; they were busily engaged in their occupation upon the track; their foreman was warned, -as he testifies, by the sound of the-bell and the whistle, and-it is incredible that, on a bright afternoon in May, a locomotive engineer, or a fireman, would fail to warn laborers, busy upon the track over .which the train must pass, of that approaching train so that they might clear the track in time:
The verdict, therefore, will be set aside as against the weight of the evidence.
Motion granted.