73 A.D. 34 | N.Y. App. Div. | 1902
This is an action of negligence to recover for personal injuries sustained by the plaintiff by being struck and run over by a freight car of the defendant in the city of Syracuse on the 20th of June, 1901. The plaintiff was a canal boatman in the employ of one Butler who was operating two boats, each ninety-six feet in length at the time of the infliction of the injuries. The boats came into Syracuse on the canal on the evening of the nineteenth of June loaded with coal, and Butler and the plaintiff spent the day on the towpath and northerly side of the canal, getting rid of the load on the Hastings, which was the boat in the immediate charge of
Early in the evening the plaintiff crossed over the spur track from his boat, the George Hastings, and walked along Franklin street, which is east of the brewery and intersects the canal, and went to a cigar store in the city, remaining until about nine o’clock. He then started to return to the boat by the same route, walking along close to the mill and brewery, and when within five feet of the box car he attempted to cross the track to the cabin of his boat which was opposite the east end of the car. An engine attached to some freight cars bumped them against the standing car, backing it upon the plaintiff, dragging him under the car and injuring him so that the amputation of- both legs was necessary. The night was dark, threatening rain, and the machinery in the mill and brewery was in operation, causing considerable noise; there was no light on the box car or about there, and no warning was given of the approaching train, and the plaintiff testified that he did not hear the noise of the cars or engine and was unaware of their approach.
The land where the collision occurred belongs to the State for use in connection with the canal. The blue line, which is the southerly boundary of the State land, extends about sixty feet from the south bank of the canal. It does not appear by what authority the buildings and defendant’s spur track were erected upon the State lands, but they have remained as now for many years.
While the Constitution prohibits the Legislature from selling or leasing the Erie canal (Const, of 1894, art. 7, &8), yet the Super-
The case is distinguishable from Nicholson v. Erie Railway Co. (41 N. Y. 525), relied upon by the learned counsel for the defendant, in that in that case the plaintiff’s intestate was on the track without legal right and no duty was imposed upon the defendant to exercise caution for his protection. The manifest distinction is that the plaintiff and the defendant in the present case, so far as we are able to gather from the record, had a lawful right over this strip of land, the one by a license or perhaps a user with the assent of the State, -and the other as a privilege incidental to the operation of the boats upon the canal which was the original purpose for which the land was acquired by the State. With this relation of the parties existing, we cannot say as matter of law that the defendant by butting its train against this car on a dark evening without warning of
Hor can we hold the plaintiff was chargeable with want of caution. He had seen this car standing on the spur track during the whole day. He returned from the city along the usual route. He had no intimation that an engine with freight cars attached was approaching. There were no lights and no warning. The noise of the machinery in the mill and brewery may have overcome the rumbling of the freight cars. His conduct was not so incompatible with ordinary prudence as to warrant taking the case from the jury. (See cases cited; Hoes v. Edison General Electric Company, 161 N. Y. 35; Manley v. N. Y. C. & H. R. R. R. Co., 39 App. Div. 144; Eastland v. Clarke, 165 N. Y. 421.)
The plaintiff’s exceptions should be sustained and a new trial directed, with costs to the plaintiff to abide the event.
McLennan, Williams and Hisoock, JJ., concurred; Davy, J., dissented.
Plaintiff’s exceptions sustained and motion for new trial granted, with costs to the plaintiff to abide event.