176 N.E. 834 | NY | 1931
Savino Fierro, an employee of the New York Central Railroad Company, while engaged in shoveling snow on the viaduct in Park avenue, New York city, was killed by a train operated by defendant New York, New Haven and Hartford Railroad Company. This action was discontinued as against the *448
New York Central and on the first trial the complaint was dismissed as against the New Haven. That judgment was reversed (Fierro v. N.Y.C.R.R. Co.,
At nine o'clock in the morning Fierro was working near One Hundred and Sixth street. A gang of several other New York Central laborers was near One Hundred and Fourth street. Two of these fellow-workmen, witnesses for plaintiff, testified that as Fierro started to shovel he looked north along the viaduct. At that time the train, which within a few seconds struck him, was near One Hundred and Sixteenth street traveling in a southerly direction at forty miles an hour and plainly visible to him. Shortly thereafter the New York Central watchman on duty blew his whistle and notified the men that trains were about to pass in both directions. All except Fierro heard and heeded the warning and found safety on another of the four tracks. While these other workmen vigorously shouted an announcement to him of the oncoming train from the north he was struck by it and killed. Plaintiff's witnesses stated that nothing prevented decedent from seeing the train and the court charged, without objection, that, if he looked to the north and the train was in full view at One Hundred and Sixteenth street and he did not see it, he did not look within the meaning of the law. Also he charged, without objection, that no obligation exists on the part of the engineer to give warning to a person on the tracks unless he knows that he is there and that if the engineer sees a person on the tracks he has a right to assume that such person, if he has knowledge of the presence of the train, will act as an ordinary sensible individual will act and will leave the track. No issue of fact was created at the trial and we perceive no error in the charge. The only *449 question is whether, on these conceded facts, any liability rests upon defendant.
The decisions of the courts of this State as well as those of the Federal courts preclude any possibility of affirming this judgment. As early as Chrystal v. Troy Boston R.R. Co.
(
The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG and HUBBS, JJ., concur.
Judgments reversed, etc. *451