192 N.Y. 412 | NY | 1908
The defendant operates a trolley railroad upon and along a highway in the county of Dutchess, for the purpose of transporting freight from its quarries to a freight station of a steam railroad. The plaintiff was proceeding westerly on such highway, riding in a wagon drawn by one horse which she was driving. Some distance ahead of her another woman was riding in a wagon drawn by a horse which she was driving, and as such woman approached a slight bend in the highway, where the track of the trolley line crossed the beaten path of the highway, one of the defendant's flat cars was seen approaching from the west. The car was stopped before it reached the place where the track of the railroad crossed the beaten part of the highway, and the woman driving in advance of the plaintiff crossed in front of the car *414 and proceeded westerly. The motorman of the car indicated to the plaintiff that she could proceed and cross in advance of the car. She continued her course westerly crossing in front of the car and proceeded westerly driving her horse on a walk, and when about opposite the center of the car the horse suddenly jumped to the left into a ditch upsetting the wagon and the plaintiff was injured, for which injury this action is brought. The car was equipped with hand brakes, and also with brakes operated by air compressed by an automatic motor pump. The jury could have found from the evidence that the air brakes were set against the wheels as the car stood upon the track and that the motorman released the brakes at about the time the horse jumped to one side and that the release of such brakes caused a hissing sound as the air escaped which frightened the horse.
The air escape was about six feet under and in front of the center of the car. The testimony shows that the sound was the usual and ordinary sound occasioned by releasing air brakes and the court charged the jury at the request of the defendant that the noise was not unusual. No evidence was offered on the trial relating to the defendant's right to occupy the highway as stated. It was assumed on the trial that the defendant's use of the highway was rightful and we shall so assume on this appeal. The only ground of negligence claimed by the plaintiff is that the motorman should have waited until the plaintiff was fully west of the car before releasing the brakes.
It appears that the motorman had been employed by the defendant for three years or more. He had seen the plaintiff's horse frequently and met it on the highway once or twice a week and it always went by the car all right. The plaintiff testified that she had had the horse about twelve years and had driven it nearly every day and that it was very kind and gentle and not afraid of the cars. It is not claimed by her that on the day of the accident the horse had given any evidence of fear up to the time the accident actually occurred. The motorman testified: "That the horse pricked *415 up his ears as he approached the car but that there was nothing to indicate that he was frightened or afraid."
The right of a surface railroad company to run its cars within the bounds of a highway includes the right to do such things and make such noises as are necessary, usual and incidental to such use. The car was stopped and remained standing to allow the plaintiff to cross the track in safety. The removal of the brakes was an act entirely independent of the fact of plaintiff's crossing the tracks and such act should be considered in connection with the facts and circumstances existing when the brakes were released.
Under the circumstances disclosed we are of the opinion that there was no evidence to justify the submission of the question of the defendant's negligence to the jury. The circumstances would not suggest to an ordinarily prudent man that after the wagon had cleared the track and plaintiff was proceeding westerly it was necessary to further refrain from doing any act necessary to start the car.
The judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY, HAIGHT, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.
Judgment reversed, etc.
