95 N.Y.S. 1097 | N.Y. App. Div. | 1905
The plaintiff,-with four other men, was in a lumber wagon driving south on the highway toward the railroad crossing near the defendant’s station at Eed Creek, Wayne county, on the Eome, Watertown and Ogdensburg railroad.
The driver, Milton Jenkins, owner of the team and wagon, sat on the front seat, and with him one Becker; on the next seat, a board across the top of the wagon box, were xthe plaintiff, sitting to the left, and Burgess Jenkins, the father of Milton, on his right or west side; the fifth man, Qurea-u, was on a seat in the rear.
As they approached the railroad crossing they were stopped by an east-bound freight train, which had pulled into the station, and' it being a down grade to the east the train did not come to a stop until the engine was some distance east of the highway crossing. The train was hacked up and placed 200 or 300 feet west of the highway, where some of the cars were uncoupled and were «hifted back and forth across the highway on the main track and a siding on the south, the nearest rails of the two tracks being 9 feet apart, and were connected by a crossover which started from the siding or south track at a point east of 'the highway, and crossing the highway, and was connected with the main track- 95 feet west of the center of the highway.
The party in-the wagon stopped first - On a knoll some 200 feet to the north of the track, and remained there about ten minutes while the engine was switching cars back and forth over the highway. The wagon, was then moved down into a hollow 100 feet or more from the track, from which point there is a rise to the track. There they waited until. the wagon was moved back toward the train. The driver then started the horses on a walk to cross the track, and while they were walking the engine ran down over the crossover- far enough beyond the switch to reverse and come -hack on the main -track. When the party saw the engine coming back, the driver was about forty feet and the horses’ heads about twenty-eight feet from the track. He then whipped the horses into a .run, and crossed in front of the engine, which missed the rear end of the wagon by.from four to six feet.
Burgess Jenkins says, “the engine backed west, and as it crossed the crossing my son started the team, and when the engine
. The plaintiff says: “We stood down there at the foot of the. gradé I should think ten minutes. When we started up from down at the foot of the grade the engine was coming back toward the main track over the crossover; * * * as you came along up that grade * * * ■ the engine.ran back onto the main track and there Was a man there, * * * after she ran back of the switch a little, he Whirled the switch, swung up his hand so, and he pulled it wide open and let her come right down. * * * I could see the switchman and. the engine perfectly plain at that time; nothing between, and nothing to' prevent their seeing me: At the time that the engine was opened up, the horses were still on a trot. * * * Q; How long was it after you heard the engine opened up,' before Milton Jenkins put the whip on the team.* A. He put it right on. * * * He commenced whipping the horses and getting off the track, and Burgess Jenkins raised up in the wagon and he swung hiá hands so, * * * towards the engine. It kept coming near to us and he raised up and I partially raised, the wagon ran over the
The engineer says he saw the team back on the knoll, but did not observe, it afterward until the horses’ heads were near the track and his engine about half way between the switch and crossing, when he shut off steam and applied the brake.,
The negligence alleged is .that no signal was given at the time the engine was reversed and came back toward the crossing.
The court charged the jury that when the engineer backed the engine west of the crossing, stopped, reversed and started in an easterly direction, he was bound to give reasonable and timely warning or notice that he proposed to run his locomotive over, the crossing. We are of the opinion thát it is not a question of signals:
The defendant had the right, as stated in the charge, to shift cars at stations ;• had a perfect right to block the highway in the manner described by the witnesses, iñ other words, the defendant had the right of way. As stated by the court in Warner v. N. Y. C. R. R. Co. (44 N. Y. 469), the citizen must yield the right of way at highway crossings, and if one sees cars approaching a crossing it is his duty to wait until they have passed. Signals would not have given the-occupants of the wagon any more, notice of the approach of the engine than theyliad at the time the.men in the. wagon were forty and the horses twenty-eight feet from the crossing. Qureau says: “ I could see the engine all the time as we were going up the incline.” Becker says he heard the lever when the engine was reversed; then he looked and saw that the engine was coming.
The language of the court in Pakalinsky v. N. Y. C. & H. R. R. R. Co. (82 N. Y. 427) is applicable to the case here : “ The sole object of ringing a bell upon an engine is to notify persons who might be upon or near a railroad crossing of the approach of the engine, so that they can get or keep out of its way. If one setes the engine and knows that it is approaching, he needs not the
Hpon the facts shown by the plaintiff the defendant was entitled to a nonsuit. '
Without regard to the disposition made of the question which we have discussed, the judgment must be revérsed.
The trial justice having become a member of" the Appellate Division of the second department, had no power or jurisdiction thereafter to hear and decide the motion for a nonsuit reserved at the trial at. which the case was heard and decided. (French v. Merrill, 27 App. Div. 612.) .
All concurred, Spbihg, Williams and Hiscock, JJ., upon the ground of mistrial only.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide _ event, upon questions of law only, the facts having been examined and no error found therein.