215 A.D. 82 | N.Y. App. Div. | 1925
The action was to recover for personal injuries sustained by the plaintiff, Louis Kolanka, by reason of the alleged negligent operati.on of the defendant’s railroad train. The accident occurred at a grade crossing in Wayne township, Passaic county, in the State of New Jersey. The plaintiff was a passenger in a Ford truck driven along the road to Two Bridges at Carlton Park in Wayne township. The truck was one used for the purpose of conveying cattle and dressed meats in connection with the butcher business in which the plaintiff was employed. The car, at the time, was driven by one Kaplan, plaintiff’s employer, and was an ordinary Ford truck, with an inclosed cab, in which plaintiff and his employer were riding, and a rack at the rear. The cab had doors on either side. Plaintiff and his employer had delivered at a butcher shop a quarter of beef and were proceeding along the road in question at an ordinary rate of speed when they approached the grade crossing of the defendant’s railroad. At this point the defendant’s railroad runs generally in a northerly and southerly course. To the south of the grade crossing and several hundred feet distant therefrom the defendant’s railroad makes a gradual curve from the east, and as it approaches the crossing from the south runs almost in a direct northerly course. About 800 or 900 feet to the south of the crossing and within the curve was an apple orchard which, to some extent, obscured the view at the crossing of approach
The engineer testified that as he left the station next south of the place of the accident and as he was rounding the curve in question his train was running at approximately forty miles an hour, and was “ picking up ” speed all the time, and that he made no effort by the application of the brakes or otherwise to diminish the speed of his train prior to reaching the point of the crossing, where the cab in which the plaintiff was riding was struck. Assuming the speed of the train at from forty to forty-five miles an hour, the time consumed by the passage of the train from the point where the plaintiff first saw it, and when he testified he made an attempt to jump out of the cab, to the crossing was only about twelve or fourteen seconds. It was conceded that the defendant maintained no flagman or other signal at the grade crossing in question.
According to the testimony of the plaintiff and several witnesses testifying in his behalf, no whistle or other signal was sounded and no bell rung as the train approached the crossing.
The engineer in charge of defendant’s passenger train which struck plaintiff testified that after leaving Little Falls, the last station to the south of the crossing, and as the train was approaching the crossing, and just as his engine rounded the curv.e by the apple orchard, he saw the truck in which plaintiff was riding pro-, ceeding along the highway toward the crossing; that when an
At the close of the evidence the trial court held that the plaintiff was guilty of contributory negligence as matter of law in remaining in the cab after he saw the approaching train, and that such contributory negligence on his part precluded any recovery. Upon motion of the defendant to dismiss the complaint upon the ground that the plaintiff was guilty of contributory negligence as matter of law precluding any recovery in the action, the learned justice presiding at the trial said: “ Of course, if I am on a railroad track and see a train coming, and have lots of time to get off the track and do not get off, and I get hurt, that is not much of a case for me. That seems to be the condition of this man. * * * He should have gotten out of the automobile, and if there was any negligence sue the company for the cost of the automobile. They had no business to stay there.”
I am of the opinion that the court was in error in holding, as matter of law, that the plaintiff was guilty of contributory negligence. When the car in which the plaintiff was a passenger was stalled upon the crossing and he looked to the south and saw the defendant’s train 900 feet away approaching at a very rapid rate of speed, he was certainly confronted with an emergency calling for prompt and effective action on his part to escape being hit. Plaintiff testified that he at once tried to open the door of the cab, but was unable to get out of the cab before the train was upon him. The evidence shows that plaintiff’s employer, who was driving the car, exercised the utmost caution on approaching the crossing? He stopped the car fifteen or twenty feet from the crossing so that the plaintiff and he could look and listen for an approaching train. They looked both ways and saw no tram approaching. The car was then started, but while crossing the tracks became stalled. Immediately the plaintiff saw the rapidly approaching train and, according to his testimony, at once made an effort to leave the cab and to open its door and escape from his
The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Finch, Martin and Burr, JJ., concur; Clarke, P. J., dissents.
Judgment and order reversed and new trial ordered, with costs to appellant to abide the event.