145 N.Y.S. 781 | N.Y. App. Div. | 1913
On the first trial defendant’s counsel requested the court to charge the jury that if plaintiff’s intestate walked under the gates when down its verdict should be for defendant, which was refused. In our review of the first trial this ruling was held to be erroneous and the judgment for plaintiff was, on that ground, reversed and a new trial ordered. In the course of the prevailing opinion in considering the question it was said: “A person who consciously goes upon railroad tracks at a street crossing, knowing that the gates are closed, takes chances which I think a reasonably careful and prudent person does not ordinarily take. He does so at his peril and I think is guilty of negligence as a matter of law unless there are special circumstances to justify him in so doing, and which I think are absent in this case.” Also, “I think there is evidence which
Upon the present trial the learned justice presiding instructed the jury, in substance, that if deceased and Nelson passed the gate after it was down, then plaintiff was not entitled to recover, and the verdict must be for defendant. He also charged that “the lowered gates are an indication that the railroad has and is entitled to the exclusive use of the tracks for the time being, and a person who attempts to cross is guilty of contributory negligence as a matter of law.” Also, that there was no evidence from which the jury could find that on the occasion in question the gates were negligently operated.
The court was requested by defendant’s counsel to charge “that.Mr. Hatch had no right to assume that the gates were lowered for the passage of the freight train only, but that they are a signal for all trains that are about to pass or are passing.” This the court refused, holding that the question was one for the jury, and defendant excepted.
We think this was error. This request must be considered in the light of the circumstances of the case. We think the jury would understand from the denial of this request that it was submitted to them to determine as a question of fact whether Mr. Hatch might be considered free from negligence if he governed his conduct in approaching the track on which he was struck on the assumption on his part that the gates had been lowered only for the freight train, and that the law would permit them to find him free from negligence while acting upon that assumption and failing tó take the precautions for his safety which otherwise he would have considered it necessary to take.
The court was also requested by defendant’s counsel to instruct the jury “that it is the duty of a person standing within the gates at a railroad crossing and in a place of safety and knowing that a train may be approaching from either direction at any moment, and he sees the gates go down,
We think this exception was well taken. The principle involved in the request is the same in substance as that involved in the question determined upon the former appeal. There can be no distinction between the duty of a pedestrian at a railroad crossing in this respect, whether he stands on one side or the other of the gate, so long as he is in a place of safety. In this case the jury could have found that the place where deceased and Nelson were standing when the gates went down was a place of safety, as it was a siding not then being used.
This request was repeated in substance in another form, as follows: “That a person crossing railroad tracks protected by gates, and who, when standing inside the gates or between the gates, and without stopping, observes that the gates are down or going down, and that a train is approaching from the west on the east-bound track, the further track from him, and knowing that a train is due or may come from the opposite direction on the west-bound main track, the one immediately next to the one occupied and between him and the passenger train, and with no emergency or reason requiring him to cross before the gates are raised, proceeds across and is struck by a train on the west-bound track is guilty of contributory negligence as a matter of law.” The court also held that this was a question for the jury and defendant excepted.
There was evidence from which the jury might have determined that there was no emergency or reason requiring Hatch to proceed over the crossing before the gates were raised, and if they so found, we think, as matter of law, Hatch was guilty of contributory negligence in proceeding onto the main tracks before the gates were raised for the same reasons that would have made him guilty of such negligence had he passed around or under the gates and proceeded upon the main tracks under the same circumstances.
We shall not consider here whether a finding by the jury that at the time the gates went down deceased was not in a place of safety or that no emergency existed or reason for
We think the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred, except Kruse, P. J., and Lambert, J., who dissented upon the ground that it was a question of fact whether the deceased was negligent in proceeding across the tracks if, in fact, the gates were lowered after he went upon the tracks.
Judgment and order reversed and new trial granted, v/ith costs to appellant to abide event.
