86 N.Y.S. 1075 | N.Y. App. Div. | 1904
Upon a former appeal from a judgment in this action in favor of the plaintiff (81 App. Div. 132, 80 N. Y. Supp. 1074), the judgment was reversed and a new trial ordered. Upon the new trial the plaintiff again obtained a verdict, from which the defendant appeals.
The locality, the nature of the accident, and the testimony to sustain the plaintiff’s action are detailed in the opinion upon the former appeal. It was there held that the verdict was against the weight of evidence, both as to the negligence of the defendant and the contributory negligence of the plaintiff’s intestate.
The tracks of the Hudson River Railroad are located between 12th avenue and the river. Twelfth avenue does not here appear to be graded, curbed, or paved above 134th street, nor had 134th street been laid out west of 12th avenue. There was, however, a paved roadway about 30 feet in width that crossed the railroad tracks, and furnished access to the river from 12th avenue, which had been in use for two or three years prior to the accident. The two center tracks of the defendant are used for passing trains, while the east and west tracks were used for the storage of freight cars. On the west of the tracks there was a roadway extending north from 134th street, about 60 feet in width. Eight or 10 feet of this roadway was paved, and it was used by wagons and pedestrians in going to a dock at the foot of 135th street. There was a garbage dump at the fcfot of 134th street, and this paved roadway seems to have been principally used to furnish access to the garbage dock, and to remove freight from freight cars standing on the side track. There was no flagman stationed at
From this evidence, is it possible to find that the dead man whose body was found five or more feet north of the crossing was the man seen upon the crossing, or that he was free from contributory negligence? It is quite evident that it would be a physical impossibility for the body of a man who was struck by a south-bound car on the crossing to be afterwards found north of the crossing. If he was struck down where he stood, he must have been standing where his body was found; and, while it is quite probable that the body would be carried along with the train, it is inconceivable that it would have been thrown by the train back in the direction from which the train was coming. The deceased and his companion were familiar with the locality, and with the fact that this passenger train passed at about this time. People from this clubhouse were in the habit of walking down the tracks, or on the road west of the track. The standing freight cars were five feet or less from the crossing, and a person, to get on the trad', five feet or more north of the crossing, would necessarily have had to wa'k around the freight car, and then to the north. It is much more probar le, considering the location of the freight car and the place in which the body of the plaintiff’s intestate was found, that he was walking down tne track when struck by the passing train; but, assuming that the two men were the ones that the witness Smith saw, and that, notwithstanding the contradictions in his testimony, he did see two men standing on the crossing west of the south-bound track shortly before the train came, they were then in a position of safety, waiting for the freight train upon the north-bound track to cross. To account for the accident, assuming Smith’s story to be true, they must have stepped on the track directly in front of the approaching train and walked north on the track. The passenger train could be seen for 200 feet, as testified to" by a witness for the plaintiff who saw the train approaching at the clubhouse. It may be that the approaching passenger train was at 134th street somewhat obscured by the smoke of the freight engine, but certainly these men were not justified in stepping in front of the train, and walking north on the track in front of the approaching train, instead of remaining in a place of safety, off the track, until the freight train had passed.
Upon the former appeal we thought that a verdict that the deceased was free from contributory negligence was clearly against the weight of evidence, and I cannot see that this evidence has at all changed the facts upon which that conclusion was reached. We have the same situation and the same conditions. There is nothing to explain how
It follows that the judgment and order appealed from is reversed, and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P. J., and EAUGHLIN, J., concur. HATCH, J., dissents.