185 A.D. 174 | N.Y. App. Div. | 1918
The plaintiff had a judgment for damages for personal injuries sustained by him when defendant’s locomotive, drawing a passenger train, collided with him at a city grade crossing owing to the engineer’s alleged negligent management of the locomotive. The grounds of defense were absence of negligence in the management of the locomotive and failure of plaintiff to show freedom from contributory negligence.
One Hatch, who accompanied the plaintiff upon the crossing, was killed. An action brought by Hatch’s widow as administratrix of his estate was tried three times. The first and second trials resulted in verdicts for the plaintiff. Upon appeals to this court judgments upon the verdicts were reversed and new trials ordered. (156 App. Div. 394; 159 id. 596.) The third trial resulted in a nonsuit at the close of all the evidence. On appeal this court affirmed the judgment of nonsuit (167 App. Div. 958) and the judgment entered upon the decision was affirmed in the Court of Appeals, without opinion. (219 N. Y. 650.)
The evidence upon the trial of this action does not differ materially from the evidence given upon the several trials of the Hatch case and, therefore, the question for our determination is whether or not upon the doctrine of stare decisis our decision in the Hatch case requires us to reverse the judgment under review and dismiss the complaint. We cannot know
Somewhat extended reference to the evidence seems to me to be necessary.
Lion street is one of the public streets of .the city of Dunkirk and runs northerly and southerly. The defendant’s tracks, running easterly and westerly, cross Lion street at right angles at grade. The crossing is protected by gates. The northerly gate is in two parts, the base of one being on the east side and that of the other on the west side of the street. The southerly gate has but one arm whose base is on the east side of the street. Five tracks cross the street. Although the evidence is undisputed that these tracks are of the standard gauge, that is, that the distance between the rails of each track is four feet eight and one-half inches, the plaintiff’s testimony makes the rails of each track five feet apart from center to center, which may not be far out of the way. The first track on the north is one of the defendant’s sidings and its northerly rail is about five feet from the northerly gate. I am adopting the measurements of the plaintiff which differ slightly from those of the defendant. The next track southerly is an Erie siding and its northerly rail is about six feet from the southerly rail of the siding last mentioned. The next track southerly is the defendant’s west-bound track and its northerly rail is about eleven and one-half feet from the southerly rail of the siding last mentioned. The next track southerly is the
On each side of the crossing there is a plank sidewalk. The crossing gates are operated by a man in an elevated circular structure located just south of the defendant’s eastbound track and just at the east edge of the east sidewalk.
The defendant’s tracks extend easterly from the edge of the easterly sidewalk on Lion street, straight, to a point nine hundred and seventy feet therefrom at which point they begin to curve to the north. The defendant’s signal tower is one thousand three hundred and ninety-five feet east of the Lion street crossing, is a two-story building and is about twelve by twenty feet. It is about nine feet north of the north rail of the defendant’s west-bound track. To a person standing in the middle of the west-bound track on the Lion street crossing a locomotive coming from the east would be first visible one thousand six hundred and ninety feet therefrom. There is a semaphore just east of the crossing and a little over seven feet north of the west-bound track. There is also a water pipe about six and a half feet north of the west-bound track and about seventy-eight feet east of the crossing. It appears that there is a great number of switch lights east of the crossing down through the yard.
On the night of Saturday, April 6, 1912, more accurately at twenty-five minutes after one o’clock, the 7th day of April, 1912, the plaintiff and Hatch were collided with by the defendant’s locomotive drawing the second section of the' passenger train known as the Twentieth Century Limited, and moving westerly on the defendant’s west-bound track. Hatch was instantly killed and the plaintiff received the injuries for which he has recovered the judgment under review.
The plaintiff testified in substance that he. and Hatch approached the crossing on Lion street from the north; that they were walking on the east sidewalk and had gotten fifteen
This is, I think, a fair statement of the plaintiff’s testimony, although it is possible that the jury might have taken a slightly different view of it, in one particular. As I have stated it, he testified: “ When Hatch was stepping upon the ■ west-bound track—was practically upon the west-bound track — and the plaintiff was four or five feet from it, he saw the Twentieth Century Limited coming towards them on that track and he reached to save Hatch — ‘ reached out my left hand to grab him; ’ that just then the collision occurred.” There is a suggestion in the plaintiff’s testimony that as he stood at a point nine feet from the west-bound track, Hatch having stopped and stood five feet nearer the track, Hatch started forward before the plaintiff did and when the plaintiff saw the train
The overhang of the locomotive, that is, the projection beyond the track on each side, is twenty-six inches, that is, the cylinder and pilot beam extend beyond the track twenty-six inches.
The plaintiff had been on the police force of Dunkirk for fourteen years. He was a patrolman and this crossing was on his beat. Hatch was a special officer and was a night watchman in the business section of the city in the immediate locality of the crossing. Both of these men were very familiar with the crossing, the location of all the tracks, and the location of the defendant’s two main tracks. They were very familiar with the passing of the night trains on the defendant’s tracks.
The evidence tending to show that the plaintiff and Hatch were already on the crossing south of the north gate when the gates went down is not convincing. The plaintiff testified to that condition of things and one Bartos corroborated him. It appears that the plaintiff, Hatch, Bartos and one Allen were in the vicinity of the crossing a short time before the accident. The plaintiff testified that when he and Hatch had reached a point fifteen or twenty feet south of the north gate both the north and south gates went down. Bartos testified that he and Allen were approaching the north gate when it “ fell ” down right in front of them. Allen, called as a witness by the defendant, testified that he was with Bartos and saw the plaintiff on Third street, but that he did not see Hatch at all; that neither he nor Bartos approached the north gate; that neither he nor Bartos saw the north gate go down; and that neither he nor Bartos saw either the plaintiff or Hatch on the crossing.
The learned trial judge permitted the jury to pass upon the question whether or not the plaintiff might have confused the headlight of the locomotive with switch lights east of the crossing. The only evidence with reference to the presence of switch lights was given by the plaintiff’s surveyor but those switch lights were down through the yards so far east of the crossing as not possibly to have been confused with the headlight of the locomotive. There was the supporting post of a semaphore just east of the crossing and a water pipe further east and about seventy-eight feet from the crossing. These might have obstructed the view east slightly but not appreciably
I entertain the view that the plaintiff and Hatch went upon this crossing after the gates were down and the east-bound freight train was passing over the crossing, and reached the point of collision just as the freight train cleared the crossing. I think they saw the freight train passing over the crossing, assumed that the gates had gone down for that train, assumed that the noise they must have heard was that of the freight train, and, heedless of the approach of the passenger train, walked into the peril of its pathway. If it were to be conceded that the question of the defendant’s negligence and the question of the plaintiff’s freedom from contributory negligence were for the jury, their verdict is against the weight of the evidence.
We are now brought to a consideration of the stability of the judgment under review, assuming the view of the evidence most favorable to the plaintiff irrespective of its weight.
It seems to be entirely clear that if the plaintiff and Hatch had gone upon the crossing after the gates were down, and the same fate had befallen them, the plaintiff could not recover. The barring of the way by the gates was notice to them that the crossing was to be used exclusively by the railroad. In that case no negligence on the part of the defendant could be predicated upon the speed of the train or the absence of signals of its approach by whistle, bell or headlight. Whatever effort the plaintiff might have made to rescue his companion would not have furnished the basis of a cause of action against the defendant for two reasons, first, because the defendant would not have been guilty of negligence, and, second, because the plaintiff would have been guilty of negligence, as matter of law. It is true that some circumstance might take from the closed gates such potency of warning, as, for example, the circumstance shown in the Pruey case (Pruey v. N. Y. C. & H. R. R. R. Co., 41 App. Div. 158; affd., 166 N. Y. 616), to wit, that the gates were left down for considerable periods in the night and early morning irrespective of the
With the gates down in the circumstances, however, the defendant was not guilty of any actionable negligence. That being so, the plaintiff could not create a cause of action against the defendant even if the evidence presented the case of one who voluntarily risked his life to save another.
All concurred, except Lambert, J., who dissented and voted for affirmance.
Judgment and order reversed, with costs, and, this court having determined that the trial court should have granted the defendant’s motion for the direction of a verdict, the complaint is dismissed upon the merits, with costs.