226 A.D. 205 | N.Y. App. Div. | 1929
Lead Opinion
Plaintiff has a judgment in a negligence
action. Defendant asks a reversal solely upon the ground of contributory negligence. As to all disputed facts we take plaintiff’s version.
While driving over a grade crossing of defendant’s tracks plaintiff’s automobile and a train came into collision; plaintiff received serious injuries. The time was about seven a. m., of a clear, bright June day. The plaintiff was driving easterly on a private road; the train came from the south. The private road leads from a highway west of the crossing to a manufacturing plant a half mile east thereof. When about 125 feet from the tracks this private road turns from a northerly to an easterly direction and runs thence in a straight course to and over the grade crossing. The surface of the road was dirt, dressed over with crushed stone, and on this morning was dry. From the curve just mentioned there is a down grade toward the crossing, varying from eight per cent to five per cent; as one approaches the tracks the grade diminishes. There was no noticeable irregularity or roughness in the surface of the road or of the crossing, nor was there any other passing vehicle, or sound, or thing, to divert his attention, or anything to cause him to hasten on his way. He approached the crossing undisturbed and with his attention undiverted. The photographs taken two days after the accident, defendant’s Exhibits E and G, show the crossing from opposite directions.
The railroad fine consisted at the crossing of three separate tracks, with the usual spaces between. As one approached from the west, he first came to a side track, then to the south-bound track, then to the north-bound track on which plaintiff was injured. The distance from the westerly rail of the north-bound track to the westerly rail of the side track is twenty-five feet. In either direction from the crossing the tracks are straight and of level grade to the north about 1,000 feet and to the south more than one mile.
After one left the highway and traveled toward the crossing on the private road there were places where the view of the railroad tracks in either direction was open and other places where it was obstructed. The condition essential to the determination here is that existing between the above-mentioned, curve and the crossing. Within this curve and to the south was a bunk house which obstructed the view. Having passed this, for a short space one could see the tracks in both directions, but thenceforward, for a distance of seventy feet or more, the side of a cut entirely shut off the view to the south.
With the conditions and surroundings above described the
We think the rule is well established in this State that when a man, approaching a railroad grade crossing with which he is acquainted, passes from behind an obstruction which has cut off his view of the tracks in either direction from the crossing, he is not at liberty to continue across those tracks into that narrow place of danger without giving himself reasonable opportunity to see whether or not a train is approaching within a distance which threatens a collision. (Keller v. Erie R. R. Co., 183 N. Y. 67; Cassidy v. Fonda, J. & G. R. R. Co., 200 App. Div. 241; affd., 234 N. Y. 599; Barry v. Rutland R. R. Co., 203 App. Div. 287; affd., 236 N. Y. 549; McCullough v. Pennsylvania R. R. Co., 224 id. 541; Barnasky v. N. Y., O. & W. R. Co., 226 id. 435; Raymer v. Rutland R. R. Co., 204 App. Div. 135, 137.) The Federal courts have gone further. (Baltimore & Ohio R. R. Co. v. Goodman, 275 U. S. 66.)
While generally contributory negligence in a grade crossing case presents a question for the jury, the rule governing a nonsuit or dismissal of the complaint is the same as in any negligence case. (We do not refer to the statutory action. Civ. Prac. Act, § 265.) There must be some .evidence to support a finding that plaintiff’s negligence did not contribute to the accident, else there can be no recovery. In the present case plaintiff, having his safety completely in his own control, left his place of safety and, without using the precautions which the rules require and ordinary prudence suggests, entered upon a place of known danger. He had plenty of time to look. It was a right angle crossing, rendering it equally convenient to look in either direction. The view to the north had not been obstructed for some distance; he was free to look south as soon as he came out of the cut. He was going at twelve miles an hour; he could have slowed down to. five or six. He had no occasion to hurry and nothing to divert his
The judgment should be reversed and the complaint dismissed, with costs.
Hinman and Hasbrouck, JJ., concur; Davis, J., dissents, with an opinion in which Hill, J., concurs.
Dissenting Opinion
As I view it, this is the ordinary highway crossing case where, by reason of the obstructed view of the traveler, the question of the exercise of due care on his part becomes one of fact.
The plaintiff, a bricklayer, was going to his work at the cement plant where he had been employed four or five days, and had never seen .a train when passing over these tracks. About 1,000 men were there employed, and this was the only road leading to the plant. No question is raised by defendant as to its duty to give warning signals at this crossing; and it is not now disputed that such signals were not given on this occasion.
The road to the plant turned off the improved highway and followed a winding course to the railroad crossing, a distance (as it scales» on the map) of about 450 feet. This was a rough dirt road covered with loose crushed stone, and it was dowm grade from the main highway to the crossing. The plaintiff was naturally required to give some attention to driving his car on this kind of a road. Although a majority of my associates attach little or no importance to audible signals as a warning to the wayfarer, I think in this case at least, sharp blasts of the whistle or the ringing of the bell would have been of great value to plaintiff who was listening as he drove along this crooked road, with his view of the track largely obscured. !
Such attempts as could be made to use what is regarded by the majority as the more valuable protective sense, were in fact made. As plaintiff turned into the road about 400 feet from the crossing, he looked and had a view of the tracks to the south (from which direction the train came) for a distance from one-half to three-quarters of a mile. He saw nothing and proceeded on his way. After he passed the “ bunk house ” and was about 75 feet from the track, he had another view and looked. Here he could see to the south about 700 to 800 feet, and to the north 500 to 600 feet. He saw no train and had heard no signals. He then pro
Under the circumstances just-detailed, based on what the jury must have found to be the true facts, it is quite clear to me that reasonable minds might differ in their conclusions concerning the proper degree of care to be exercised under the circumstances; and, therefore, the question of plaintiff’s contributory negligence in this case is peculiarly one for the jury. (Massoth v. D. & H. Canal Co., 64 N. Y. 524, 529; Dolan v. D. & H. Canal Co., 71 id. 285, 288; Skelton v. Lehigh Valley R. R. Co., 171 App. Div. 91; Ticknor v. Pennsylvania R. R. Co., 208 id. 461.) The plaintiff was not bound to see at his first opportunity to look, nor was he required at his peril to look in the right direction at the right time. If the jury was satisfied that he made the reasonable efforts to ^discover and avert the danger that a prudent man would have made in like circumstances, it is sufficient and we should not disturb the verdict. (Greany v. Long Island R. R. Co., 101 N. Y. 419; Smith v. N. Y. Central & H. R. R. R. Co., 177 id. 224, 229.) And if plaintiff approached the crossing with his car under control and his mind on the danger, and had looked once from a proper viewpoint, we may not say as a matter of law he was bound to look again at any particular time or place which we point out as prudent to avoid the accident. (Carr v. Pennsylvania R. R. Co., 225 N. Y. 44; Chamberlain v. Lehigh Valley R. R. Co., 238 id. 233; Horton v. N. Y. Central R. R. Co., 237 id. 38; Maiorano v. Long Island R. R. Co., 244 id. 387.)
The fact that no signals were given by the .train was a circumstance that could have been considered by the jury in determining the question of plaintiff’s contributory negligence. Despite this new doctrine that “ hearing is an indifferent guard to safety,” there is an unbroken line of authorities to the effect that a traveler depends for protection upon his ears as well as his eyes, and that signals must be given to warn him of danger and that failure to give such signals may furnish a reason for relaxation of vigilance and care on the part of the traveler who has a right to rely on
The cases in which the courts have determined that the plaintiff was guilty of contributory negligence as a matter of law, are those presenting unusual or exceptional facts and leaving nothing in doubt either of inference or fact. In such cases reasonable minds can reach but one conclusion. (Massoth v. D. & H. Canal Co., supra, 529.) In my judgment, this case does not fall within that class. Unless we say the plaintiff was bound to stop, or to look in a particular direction at some definite place or time, it was a question for the jury to determine whether he exercised the reasonable care the circumstances demanded of a prudent man. The question has been answered in plaintiff’s favor; and I vote for affirmance.
Hill, J., concurs.
Judgment and order reversed on the law, with costs, and complaint dismissed, with costs.