94 N.Y.S. 765 | N.Y. App. Div. | 1905
The only question presented for decision in this appeal is whether the evidence was such as required the submission of the case to the jury in the first instance. It is settled by the authorities that such submission is required where conflicting evidence fairly presents questions of fact for determination and where the result depends upon
The plaintiff, in support of the order appealed from, is entitled to the most favorable inferences deducible from the evidence, and every disputed fact must be treated as established in her favor. (Higgins v. Eagleton, 155 N. Y. 466.)
Applying this rule, I am of the opinion that the jury might have ■found from the evidence that the deceased could not have seen or heard the approaching train until the instant his horses reached the track, and too late to prevent the accident. There was, I think, sufficient evidence showing or tending to show this, and showing or tending to show that the situation was such that if he had looked and listened he could not have seen or heard the train until it was too late, and, therefore, a question was presented for the determination of the jury. (Smedis v. B. & R. R. R. R. Co., 88 N. Y. 13 ; Fejdowski v. D. & H. C. Co., 168 id. 505.)
The evidence was such that the jury might have found facts which would have relieved him from the application of the general rule requiring persons to look and listen before crossing at grade the tracks of a railroad. (Oases last cited.) While there was no direct evidence that the deceased did look and listen, there is some evidence from which the jury might have found that he exercised care in approaching the crossing.
There was some conflict in the evidence as to the speed of the train, one of plaintiff’s witnesses swearing to facts from which the jury might have found that it was running about seventy-five miles an hour. The engineer’s estimate of speed was about sixty or sixty-five miles an hour. Different inferences could have been drawn by the jury from the evidence as to the speed with which the deceased was driving just before he was struck, and different inferences co-uld have been drawn from the evidence relating to the distance' within which the bus could have been stopped, loaded as it was with thirteen men and a boy besides the driver, and going on a slightly
The argument by the defendant’s counsel that plaintiff’s intestate could have seen the approaching train if he had looked between the bank and the depot is based upon inferences drawn from ijhe evidence most favorable to the defendant as to the speed of the train •and of the team, and contrary to the rule above mentioned. If ■calculations as to such speed are based upon inferences from the •evidence most favorable to the plaintiff, the jury might have found that the train was not in sight when plaintiff’s intestate was where he could look at the tracks between the bank and the depot, and that when he reached a point where he could see the train on the other side of the depot his horses were already on the track and the train nearly upon him, or that he was unable to stop them or back them off the track in time to prevent collision with the engine.
Upon the evidence we cannot say that the contributory negligence of the deceased was conclusively established, nor that the ■evidence left nothing, either of inference or of fact, in doubt or to be settled by a jury. The question of contributory negligence, therefore, as well as of defendant’s negligence, should have been •submitted to the jury. (Massoth v. D. & H. C. Co., 64 N. Y. 524.)
The order setting aside the nonsuit and granting a new trial was proper and should be affirmed, with costs.
All concurred, except Chase and Houghton, JJ., dissenting.
Order affirmed, with costs.
