22 A.D. 273 | N.Y. App. Div. | 1897
This action is to recover damages for the death of John F. Harper, plaintiffs intestate, caused, as the plaintiff claims, by the negligence of the defendant. At the trial, at the close of the evidence
Harper was a motorman in the employ of the Binghamton Street Railroad Company, whose tracks run nearly east and west along the center of Robinson street in the city of Binghamton. Three tracks of the defendant’s railroad cross that street nearly at right angles, the easterly one being the north-hound track, the middle one being the south-bound track, and the other, or westerly one, being a side track. They occupy a width of about thirty feet as they cross the street. On the evening of December 1, 1895, about nine o’clock, a street car, upon which Harper was the motorman and was stationed at his post in the front end of the car, came along Robinson street from the east, passed through a switch, which was fifty to seventy-five feet east from the easterly track of defendant, and then came to a standstill twenty-five or thirty feet east of defendant’s east track. The conductor of the street car, one Caniff, then got off the car and went ahead, stopped in the middle of the middle track, looked both ways, up and down the track, saw no train coming and heard none, and then signaled the motorman to come along. He did so at a moderate rate, and just as he reached the middle track his car was struck by a train of defendant coining from the north on the southbound track. From injuries then received Harper afterwards died.
The speed of defendant’s train was from twenty to twenty-five miles an hour on a slightly descending grade. There was evidence tending to show that no signal was given of its approach. The view from the crossing to the north was somewhat obstructed. About 100 feet north of the crossing, and on the switch east of the main tracks, there was standing a switch engine, with headlight burning and shining towards the crossing, and blowing off steam. There is evidence that a man standing at any point between forty and twenty feet east of the crossing could not, by reason of this switch engine, see the track northerly up the yard beyond the engine, and that, also, the glare of the headlight and the steam interfered with the view beyond that point to one standing at the center of the tracks on the street. There "was also, on the the third or side
The decedent having stopped, and not being able at that point to hear or see any approaching train, and the conductor having gone ahead and being unable from the center of the crossing to hear or see any, and so informing the decedent, it should not be said, as matter of law, that the decedent was negligent in starting to go over. Having started, whether he should again stop or make further efforts himself to look in either direction, was a question for the jury. The obstructions to the view were such, especially the glare of the headlight on the switching engine, that it was uncertain whether the approaching train could have been seen beyond the stationary light, and the distance between the crossing and that light may have been passed over in so brief a time that a collision could not be avoided. Besides, if no signal was given of its approach, its headlight may not have been distinguishable from the headlight of the switching engine standing still and blowing off steam.
“ If in case of an accident at a crossing it appears that the person injured did look for an approaching train, it would not necessarily follow, as a rule of law, that he was remediless because he did not look at the precise place -and time when and where looking would have been of the most advantage.” (Rodrian v. N. Y., N. H. & H. R. R. Co., 125 N. Y. 526 ; McPeak v. N. Y. C. & H. R. R. R. Co., 85 Hun, 107; Greany v. Long Island R. R. Co., 101 N. Y. 419, 427; Pitts v. N. Y., L. E. & W. R. R. Co., 79 Hun, 546; affd., 152 N. Y. 623.) The absence of signals and the presence of obstructions are circumstances to be considered.
Whether or not the decedent had, in the exercise of reasonable care, a right to rely upon the information received by him from the conductor as to the absence of danger was, I think, under the cir
The absence of contributory negligence may be shown by circumstantial as well as direct evidence, and if different conclusions may be drawn from the circumstances proved, a question is presented for the jury to determine. (Chisholm v. State, 141 N. Y. 246.) So it has been said that if there is any inference of fact in doubt, or any evidence, direct or inferential, of care or caution on the part of the person injured, the question is for the jury. (Campbell v. N. Y. C. H. R. R. R. Co., 3 N. Y. Supp. 694; affd., 121 N. Y. 669. See, also, Parsons v. N. Y. C. & H. R. R. R. Co., 113 id. 355, 364; Beckwith v. N. Y. C. & H. R. R. R. Co., 54 Hun, 446; affd., 125 N. Y. 759 ; Saverborn v. N. Y. C. & H. R. R. R. Co., 69 Hun, 429; affd., 141 N. Y. 553.)
In the present case the question of contributory negligence should,, I think, have been submitted to the jury. As no point is here -made by the defendant that the evidence was not sufficient to carry the case to the jury on the question of defendant’s negligence, that subject need not be considered.
All concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.