186 N.Y. 310 | NY | 1906
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *313 For the purposes of this discussion we will assume that the jury had the right to charge the defendant with negligence, for there was evidence tending to show that *314 those in charge of the train with which the plaintiff collided gave no signal or warning of its approach to the crossing at which the accident happened. We must also assume that the evidence warranted the finding that all of the north-bound trains of the defendant stopped at the 84th street station, and that this fact was known to the plaintiff, who had been a resident in that vicinity for many years, and had been a frequent passenger on the defendant's railroad. If these facts, in and of themselves, justified the plaintiff's attempt to cross the tracks at the time and in the manner above indicated, it would logically follow that the verdict of the jury was proper and that its affirmance by the Appellate Division was necessary. It seems to us, however, that the plaintiff's evidence upon this feature of the case not only failed to establish her freedom from contributory negligence, but demonstrated its existence as matter of law. The evidence which tended to show that all of the defendant's north-bound trains stopped at the 84th street station was clearly competent and cogent upon that question, and, standing alone, might have been sufficient to sustain the conclusion that the plaintiff was free from contributory negligence. But there is something more. The plaintiff testified that from the time when she and her husband reached 18th avenue and first saw the north-bound train at a distance of 700 or 800 feet south of the station, she did not see it again until she looked around the rear end of the south-bound train which had stopped at the station. At that moment she saw the north-bound train coming into the southerly end of the station at a distance of at least 120 feet south of the point from which she took her observation. Instead of attempting to cross then and there, as she might possibly have done in safety, she concluded to walk to the north for a distance of 35 or 40 feet, to a place at or near the center of 84th street. What was her purpose in doing this? She was doubtless acting upon the assumption that the train would stop at the station, and, therefore, concluded to go far enough to the north to be entirely clear of the motor car of the train which, in stopping, might run slightly past the limits *315 of the station and into the boundaries of 84th street. Having taken this precaution, while she was in a place of absolute safety from which she could at every instant have commanded a full view of the approaching train, it is obvious that she should not have attempted to cross the track without first looking to see whether the train had in fact stopped. It is a familiar physical fact within the knowledge of all persons of ordinary intelligence that railroad trains, operated either by steam or electricity, cannot always be stopped with mathematical precision at a given point. This fact is clearly demonstrated by the evidence which tends to show that the north-bound trains, in stopping at the 84th street station, would sometimes be brought to a standstill before the motor car reached 84th street, and on other occasions would run a little further to the north so as to project into 84th street.
The inevitable inference to be drawn from the plaintiff's own testimony is that it was this uncertainty as to the precise point of stoppage of the train that was in her mind when she concluded to make the "detour" of 35 or 40 feet to the north. In doing so she turned her back to the on-coming train and never looked again to see where it was, or whether it had stopped or not, although a simple turn of her head would have sufficed to gain for her this all-important information. Without a look, she put her foot upon the north-bound track. Before she could move forward, she was struck by the train which was then moving at the rate of 12 miles an hour. Without any attempt to exercise her senses of sight or hearing she stepped from the zone of absolute safety into a place of probable danger, and this at the very time when the exercise of her faculties was imperative, if her previous precautions were to be of any practical benefit. If such conduct does not properly support the legal inference of contributory negligence, then there can be no case in which the speculative finding of a jury upon that question may not be substituted for legal rules of evidence.
It may be admitted, for the argument, that the custom of stopping all north-bound trains at this station and the failure *316
of the defendant to give any signal or warning of its intention not to stop this particular train, might have lulled the plaintiff into a feeling of security such as described in the case of Parsons v. N.Y.C. H.R.R.R. Co. (
We do not deem it necessary to go into an extended discussion of the decided cases for, in the last analysis, the question of contributory negligence depends upon the application of well-settled legal rules to the special facts of each given case. As a general rule the question whether a person colliding with a railroad train has been guilty of contributory negligence is one of fact for a jury (Parsons v. N.Y.C. H.R.R.R. Co., supra), and, as applied to the specific facts of this case, that rule is to be considered in the light of another rule to the effect that a person who intends to take passage upon a railroad train and crosses the railroad tracks at a highway crossing commonly used for that purpose, is not held to the same strict exercise of care and caution that is required of the ordinary wayfarer along the highway. (Terry v. Jewett,
The judgment should be reversed and a new trial granted, with costs to abide the event.
Dissenting Opinion
I dissent. The plaintiff, instead of running the risk her husband ran, took greater care than he, and relying, as she had the right to, on the absence of signals and the uniform custom of the defendant, met with injury owing to its negligence. The strict rule governing travelers at a highway crossing does not apply to one who is compelled to cross tracks in order to reach a railway station, which, when a train is due, is a constant invitation to come and take it. It was the duty of the defendant to so arrange its trains that a person intending to take passage could get on one without being injured by another. The plaintiff had the right to assume, in the absence of any warning, that the north-bound train would stop where such trains always had stopped. She may have erred in judgment in believing that the defendant would do its duty and warn her if a train passed by without stopping, but since she took care to walk far around instead of following her husband straight across, she should not be turned out of court on the ground that she took no care whatever. While she did not take all the care possible, since she took some, it was for the jury to say whether she took enough, and we should not hold that she was negligent as matter of law. Strict rules are required to protect passengers and those about to enter a station intending to become passengers, and every decision which tends to undermine their safety is a misfortune to the traveling public. I vote to affirm.
CULLEN, Ch. J., HAIGHT and HISCOCK, JJ., concur with WERNER, J.; WILLARD BARTLETT, J., concurs with VANN, J.; GRAY, J., absent.
Judgment reversed, etc. *319
