1 N.Y.S. 528 | N.Y. Sup. Ct. | 1888
This action was brought to recover damages for a personal injury received at a highway crossing at the village of Sodus Point. In that-village a branch track leaves the main track a short distance east of the defendant’s station, and runs east to the bay, on the northern side of Scentell street. At a distance of 510 feet from the switch, the Lyons, or Alton, road crosses the branch track at nearly right angles. The post-office is located on the south side of Scentell street, about half way between the station-house and the Lyons, or Alton, road; and Scott’s meat-market is located between the post-office and that road. At about a quarter to 9 o’clock of the evening
It is well settled that an individual, in approaching upon the highway a railroad crossing, is approaching a known place of danger, and the duty devolves, upon him of making use of his eyes and ears for the purpose of determining whether or not trains are approaching; and, in failing to do so, he cannot recover for injuries received. It was a dark night, but the evidence is overwhelming, on the part of both the plaintiff’s and defendant’s witnesses, that there was a light upon the forward platform of the approaching cars; that. they were lighted inside, and the light shone through the windows; that, in running down to the bay, the rumble of the wheels made a noise that was distinctly heard by many of the persons in the company. It would seem that. under such circumstances that, if the plaintiff had looked back upon the track, before attempting to cross, he must of necessity have seen the approaching; cars as they were coming down upon the opposite side of an open street, with,
The trial judge, in his charge, comments upon the fact that the train arrived that evening two hours late, and submitted to the jury the question as to whether or not this circumstance might not reasonably have released the plaintiff, in a measure; from the degree of precaution which might otherwise be required of him. It appears to us that this circumstance did not excuse him. The station was but a short distance away, in view of the plaintiff. There were but a few buildings in the village at this place to obstruct the vision. The train that arrived was the train bringing the mail, which could not be distributed at the post-office until its arrival. The plaintiff, with 12 or 15 others, as we have seen, were at the post-office to get the evening mail, and it is hardly possible that they could be deceived as to the time that the train and mail arrived. But, whether they were or not, a railroad track is a known place of danger, and trains are liable to be run over it out of schedule time, tio that, whether it is train-time or not, the duty exists of looking and listening for the approach of a train before crossing the track.
The motion for a nonsuit or a direction of a verdict for the defendant should have been granted. The judgment and order should consequently be reversed, and a new trial ordered; costs to abide event. So ordered.
Barker, P, J., and Bradley, J., concur.
NOTE.
Railroad Crossings—Duty of Traveler to Look and Listen. It is the duty of a person about to cross a railroad track to make a vigilant use of his senses, as far as there is an opportunity, in order to ascertain if there is a present danger in crossing. Railway Co. v. Adams, (Kan.; 6 Pac. Rep. 529; Starry v. Railroad Co., (Iowa,) 1 N. W.
See, also, respecting the duty of traveler at railroad crossings, Durbin v. Navigation Co., (Or.) 17 Pac. Rep. 5; Powell v. Railroad Co., (N. Y.) 15 N. E. Rep. 891; Schilling v. Railroad Co., (Wis.) 37 N. W. Rep. 414; Allerton v. Railroad Co., (Mass.) l5 N. E. Rep. 621; Matti v. Railway Co , (Mich.) 37 N. W. Rep. 54; Hamilton v. Railroad Co., (N. J.) 13 Atl. Rep. 29; Reed v. Railway Co., (Iowa,) 37 N. W. Rep. 149; Railroad Co. v. Lee, (Tex.) 7 S. W. Rep. 857; Railroad Co. v. Townsend, (Kan.) 17 Pac. Rep. 804; Railway Co. v. Greenlee, (Tex.) 8 S. W. Rep. 129; Cones v. Railway Co. (Ind.) 16 N. E. Rep. 638; Bloomfield v. Railway Co., (Iowa,) 38 N. W. Rep. 431.