| N.Y. App. Div. | Jul 7, 1908
The plaintiff’s intestate was struck by a train, causing his death, while he was attempting to pass around another train which blocked the crossing over which he desired to go. At the time he was struck he was outside the bounds of the street, and on or near the track of the train which struck him.
The serious question in the case, as I view it, is whether the deceased was a trespasser upon the defendant’s railroad tracks in attempting to pass around the standing train. If he was, the only duty the defendant owed him was not to willfully, wantonly or intentionally injure him. (Keller v. Erie R. R. Co., 183 N.Y. 67" court="NY" date_filed="1905-11-21" href="https://app.midpage.ai/document/keller-v--erie-railroad-co-3579317?utm_source=webapp" opinion_id="3579317">183 N. Y. 67.)
The accident occurred on the morning of November 15, 1902, before daylight, at the Tifft street crossing, in the city of Buffalo. The street runs east and west, and the defendant’s tracks run north and south. Within a space of 200 or 300 feet ten tracks cross the street at this point. The most westerly four tracks belong to the defendant; the other tracks belong to other railroads. The deceased lived some distance to the east of the tracks, and the steel plant where he worked is west' of the tracks. He was a man fifty-five years of age; industrious, had good health, and presumably all his faculties were normal. He was familiar with the situation,
On the morning in question, about half-past five o’clock, he left his home for his work. It was a walk of about thirty minutes from his house to the railroad tracks. He found the crossing blocked by this standing train. There is a dispute as to how long the train had stood there, but from the evidence the jury was warranted in finding that it had remained there for five minutes and upwards. The train was composed of an engine and freight cars. It was headed north, although the engine at the north end was turned around so that the tender pointed north, and the head of the engine was coupled to the freight cars. The head of the train extended from 75 to loO feet north of the crossing; the engineer of the standing train puts it 150 feet. It was a long train; - the other end extending south, as some of the witnesses testify, as far as they could see. It was standing on the third track, counting from the east side of the defendant’s tracks. The headlight was burning, throwing its light to the south. The deceased walked toward the engine, and somewhere within 75 to 150 feet north of the street bounds, and near the head of the standing engine, he was struck by a northbound train on the second track from the east side.
The train which struck him consisted of an engine and two coaches. It came backward running at the rate of thirty to forty miles an hour. .The proof tended to show that no bell was rung or whistle sounded, Or other warning given as the train approached the crossing, and, further, that the only light upon the end of the train was a red light upon the platform, the size of a railroad lantern, although the defendant’s witnesses state that there were three lights on the end of the train which struck the deceased ;' a green light on each side of the car on top, and a red light in the center of the platform.
- While the tracks are straight to the south for a mile and a half, and an approaching train would' ordinarily be in view to a person at the crossing for that entire distance if light enough to see, in this instance it was dark. The train was coming backward; the lights which were visible to a person at the crossing would ordinarily indicate that the train was going in an opposite direction, and if the deceased had the right to make this detour to cross the
The defendant contends that the deceased was a trespasser. Section 53 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676) provides: “No person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.”
This provision was discussed in the case of Keller v. Erie R. R. Co. (183 N.Y. 67" court="NY" date_filed="1905-11-21" href="https://app.midpage.ai/document/keller-v--erie-railroad-co-3579317?utm_source=webapp" opinion_id="3579317">183 N. Y. 67), and that case is relied upon as an authority to sustain the defendant’s contention. It there appeared that the person for whose death the action was brought was walking along the railroad track, using it as a short cut between two streets at .the time he was struck by the train. The accident occurred at the intersection of two railroads, and not at or near a street or highway. It was there held that the injured person was a trespasser. But I do not think it was intended by that decision to hold that every person not connected with or employed upon the railroad is a trespasser, under all circumstances, in going upon the tracks of a railroad elsewhere than within the bounds of a street or highway. The concurring opinion of Chief Judge Cullen makes it clear, I think, that such was not the decision in that case.
The case of Gunther v. N. Y. C. & H. R. R. R. Co. (81 A.D. 606" court="N.Y. App. Div." date_filed="1903-04-15" href="https://app.midpage.ai/document/gunther-v-new-york-central--hudson-river-railroad-5193129?utm_source=webapp" opinion_id="5193129">81 App. Div. 606) is also cited by defendant’s counsel. But there the injured person was likewise walking along the railroad track, using it for his own. convenience. While it appeared that he was prevented from walking directly across .the tracks lo the street which he
This right is derived from, the common law (2 Bl. Com. 36; Campbell v. Race, 61 Mass. [7 Cush.] 408), and I think it was not taken away by the provisions of section 53 of the Eailroad Law, to which I have referred.
It is true that a literal reading of ■ the provisions - of that section would include the deceased, since he was not employed upon or connected with the railroad, and was outside the bounds of the highway, strictly speaking, but such a construction • would also include persons using private, crossings, and even persons crossing the tracks in going to or from trains at railroad stations.
It appears in this case that the crossing had been blocked.' longer than three minutes, contrary to the provisions of the ordinances of the city of Buffalo, and the inference seems permissible that this train had stood on this crossing even longer than five, minutes, contrary to the provisions of section 421 of the Penal Code. I think the .jury was well warranted in finding that the railroad company was unreasonably arid unlawfully obstructing this. crossing, and
I think the learned trial justice correctly submitted the case to the jury, and that the verdict is well warranted by the evidence. The judgment and order should be affirmed, with costs.
All concurred, except McLennan, P. J., and Spring, J., who dissented on the ground that plaintiff’s intestate was a trespasser and was also guilty of contributory negligence.
Judgment and order affirmed, with costs.