301 N.Y. 103 | NY | 1950
Lead Opinion
In this action for wrongfully causing the death of the plaintiff’s decedent, the Trial Judge, after all the proof was in, withdrew the case from the jury and dismissed the complaint because in his opinion (1) the decedent’s death was clearly the result of her failure to use ordinary care for her own safety and (2) there was in any event no evidence of negligence of the defendant railroad company on the occasion in question. This dismissal of the action stands affirmed by the Appellate Division and the judgment of that court is now before us for review on an appeal therefrom which the plaintiff prosecutes as of right (see Civ. Prac. Act, § 588, subd. 1, cl. [b]).
The decedent and her mother-in-law were killed when a motor vehicle in which they were riding was struck by an Albany-Boston railroad train at a point in a Rensselaer County locality where a country road running north and south crossed a double set of east-west railroad tracks of the defendant. Warning of the location of the tracks was given by a “ Railroad Crossing ” black and white cross-arms sign which stood north of the tracks and by a “ R.R.” disc sign located on the south side thereof. There were no stationary bells or lights. For 5,600 feet west of the crossing and for 1,900 feet east thereof the tracks were straight. An unobstructed view to the east could be had from any point- on the road within 8 feet from the south side of the crossing according to witnesses for the plaintiff, or at any
On November 3,1945, at about 4:30 p.m., the decedent and her mother-in-law rode northerly toward the crossing. Apparently the decedent drove the automobile. The day was “gray”, “ dreary ”, “ dim ”, and “ hazy ”, as all the witnesses declared, but, as the same witnesses also said, visibility at that time and place was good for about a quarter of a mile. Twenty-five feet or so short of the southerly tracks, the decedent stopped the car to let an eastbound train (No. 40) go by. After it had passed and while she was driving over the crossing, a westbound train (No. 49) then and there came along on the north track and struck the car. Both women were dead when thereafter their bodies were found half a mile west of the crossing.
The negligence imputed to the defendant was an asserted failure of the engineer of the westbound train (No. 49) to blow the whistle as that train approached the crossing. Put into direct discourse the testimony of that engineer runs this way: I blew the whistle on No. 49 from the time I reached a whistling post 1,361 feet east of the crossing up to the moment of the crash. I did not see the automobile until I hit it. When my fireman hollered to me, I blew two long blasts, then a short one and then another long one. I do not know whether one, two, three or four seconds elapsed between any two of the blasts. I never saw the end of train No. 40 as it passed No. 49. I know a time came when there was an absence of sound from No. 40. At that time, as I believe, I was entering the crossing.
The fireman on No. 49 first saw the automobile when it was on the tracks in front of him and then yelled at the engineer. Both the fireman and the baggageman on No. 49 said they heard the whistle blow. But the fireman on No. 49 — though he was looking out the window of its cab at the time — was unable to estimate how near the rear end of No. 40 was to the crossing when he cried out to his engineer. Nor would he say how close No. 49 was to the crossing when he first saw the automobile. Nor would he say whether No. 40 was a short train or a long one. The baggageman on No. 49 did not see the collision.
On the other hand, a flagman on the eastbound train (No. 40) said he heard no whistle; the fireman on No. 40 said he did not
A majority of us think the jury should also have been permitted to decide the second question, viz.: Did the defendant discharge its duty of maintaining the affirmative of the issue as to contributory negligence on the part of the decedent. (See Decedent Estate Law, § 131.)
The engineer, the fireman and a flagman of No. 40 (the eastbound train) all said they looked back to the crossing after No. 40 had passed over it and then saw the automobile of the decedent move slowly northward toward the defendant’s tracks at about the time when No. 49 was approaching the crossing from the east. None of these witnesses saw the collision. Their testimony, it will be noticed, was pretty much a set of estimates in respect of time, speed and distance made from one place or
The judgments should be reversed and a new trial granted, with costs to abide the event.
Dissenting Opinion
(dissenting). I am constrained to disagree with the court’s decision.
Although there was evidence from which a jury could have found that defendant railroad was negligent, I believe that plaintiff’s intestate was contributorily negligent as a matter of law and that the complaint was therefore properly dismissed in the courts below. Regardless of the testimony of distances and measurements given by the railroad employees, the nature of the terrain at the crossing — permitting one to see to the east and west for a considerable distance — was such that plaintiff’s intestate could not have failed to observe the westbound train which hit her if she had used her “ senses of hearing and sight and proceeded cautiously and carefully ”. (Crough v. New York Central R. R. Co., 260 N. Y. 227, 231.) Her negligence consisted either in crossing before the eastbound train had progressed far enough to give her an unobstructed view of the tracks to the east, whence the westbound train was coming (see Zaun v. Long Island R. R. Co., 201 N. Y. 599, affg. 139 App. Div. 719; Daniels v. Staten Island R. T. Co., 125 N. Y. 407, 410; Heaney v. Long Island R. R. Co., 112 N. Y. 122, 128), or, if the tracks in front of her were clear at the time, in failing to look toward the east before crossing. (See Wadsworth v. Delaware, L. & W. R. R. Co., 296 N. Y. 206, 213; Schrader v. New York, C. & St. L. R. R. Co., 254 N. Y. 148, 150-151; Miller v. New York Central R. R. Co., 252 N. Y. 546; Horton v. New York Central R. R. Co., 237 N. Y. 38, 47.)
Conway, Desmond and Dye, JJ., concur with Loughran, Ch. J.; Fuld, J., dissents in opinion in which Lewis and Froessel, JJ., concur.
Judgments reversed, etc, [See 301 N. Y. 677.]