106 N.Y.S. 522 | N.Y. App. Div. | 1907
Lead Opinion
The plaintiff received serious injuries which resulted in the amputation of her leg, by a collision between one of the trains upon the defendant’s road and ail automobile in which th'e plaintiff was a passenger on the 12th day of-June, 1904. The jury rendered a verdict in favor of the plaintiff for $35,000, and from the judgment entered upon that verdict the defendant appeals.
The serious question presented is whether the evidence justified the jury in finding that the plaintiff was free from contributory negligence. ,We are all agreed that the'evidence justified a finding that the defendant was negligent, and I shall confine myself to a discussion of the plaintiff’s contributory negligence. The accident occurred at Van Cortlandt avenue contiguous to a station on the defendant’s road know-n as Van Cortlandt station. Van Cortlandt avenue runs parallel with the railroad tracks on the easterly side of the tracks. Close to the depot there is a road crossing the track from the west and on the east of-Van Cortlandt avenue is Van Cortlandt park. On Sunday, June 12, 1904, at about five o’clock in the afternoon there were two trains due at this station, one going north and the other south to New York, and a large number of people were gathered about the station waiting to take these trains. The father of the plaintiff on that afternoon had visited Van Cortlandt park in his automobile. This automobile had two seats. The seat-in front was occupied by the chauffeur who was operating the machine and the plaintiff’s father. On the back seat was the plaintiff’s mother, a Mr. Beid and the plaintiff who was seated in the middle between her mother and Mr. Beid. The chauffeur was an experienced operator of automobiles and there is no question but that he was competent, and the plaintiff’s father was seated by his side upon the front seat. The party had been on Van Cortlandt avenue on the east side of the railroad tracks watching a golf game. They then crossed the railroad track through Mansion street to look at some other games on' the west side of the tracks when the plaintiff’s father directed the chauffeur to return to the east side of the
The duty which is .imposed upon a passenger in a vehicle crossing a'steam railroad track and the question as to the extent that d passenger in a vehicle is precluded from recovering by reason of the negligence of the driver or person operating the motive.power of the vehicle have been much discussed, but it is settled in this State that the contributory negligence of the driver or operator of the vehicle is not chargeable against a passenger, but that in such a case the passenger is to be judged by the duty that the law imposes upon him under the circumstances existing at the time of the accident. There is no doubt but that a traveler approaching a railroad track is bound before crossing the track to use both his eyes"and his ears to discover if possible whether a train is approaching. As said by the Court of Appeals in Gorton v. Erie Railway Company (45 N. Y. 660): “ lie may not shut his eyes and stop his ears; and rush on regardless of the peril, and hold the railroad company as the insurer of his life, not "only against the acts of its servants, but against his own suicidal negligence. The doctrine has been declared by this court, and reaffirmed, that a traveler approaching a railroad track is bound to use his eyes and ears so far as there is an opportunity, and when, by the use of those senses, danger may be avoided, notwithstanding the neglect of the railroad servants to give signals,
I assume that this rule applies to a passenger in a vehicle approaching a railroad as well as to the person in cl large of the motive power of the vehicle. But it seems- to me evident that in determining in each particular casé .whether or not a failure to' look .or listen- was negligence that contributed to the accideht-'the age, condition and situation of the plaintiff, the' existing circumstances and the condition in which the plaintiff was as .she approached the track are to be considered in determining whether under the particular-circumstances of the case a failure -to look and listen was as a matter of law contributory negligence. It.is clear that it is uot in every case that a failure to -look or listen would.be .negligence,-.as in the case of a passenger in. a street car approaching a railroad track where the car is entirely under tlie control and management of those chargéd with its management, or in the case of a very young child in a conveyance approaching the track.. For, as I view it, it' must not^only appear that-there ivas a failure to look and listen to constitute contributory .negligence as a matter of law, but it: -must also' appear that there was nothing in the age of condition of the person injured or in the attending circumstances which excused' or would have rendered unavailing any knowledge that-was acquired by the person injured.. The plaintiff, a girl sixteen years of age, was riding in an automobile owned by her father and controlled by her father’s servant. ' Ro relation--of master and Servant or principal and agent existed between either the chauffeur who had the control of the machine or her father under whose, direction it was being operated. She was not in a position that she could give orders to either, and she Avas not responsible for the "management .or control of-'the conveyance.
'. An examination of a'few of the many cases which "have discussed this subject will I think make -it plain,'considering the age and sex of the plaintiff and the circumstances under which she was riding in this automobile, that it was a question for the jury as to whether she was guilty of negligence which contributed to the accident.
In Robinson v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 11) the couft charged the jury that if the defendant was negligent, and the plaintiff was. free from negligence, she Avas entitled to. recover,
We have it thus established that neither the negligence of the. chauffeur nor of. the- plaintiff’s father on the front seat could,, under the facts as they here exist, be chargeable tq- the plaintiff; and the question of Contributory negligence must be' determined entirely upon the question as to the duty imposed .upon the plaintiff, and. whether, as matter of law, it can be said she failed to perform that duty. There is also to be considered the age' and sex "of .the plaintiff, considerations that were for the jury in relation to the degree of cafe with which she was chargeable.' Thus it was said in' the case of McGovern v. N. Y. C. & H. R. R. R. Co. (67 N. Y. 417): “The rule which requires persons before crossing a .railroad track to look to see whether trains-are approaching, and that, if they , "omit to do so, .alnd are injured by a collision, which, if they had looked' would-have been avoided,, are to be deemed guilty of negligence, is not to be applied inflexibly, and in all cases, without - "regard to age or other circumstances." The "law is not so unreasonable as to expect" or require the sanie maturity of, judgment, or the same degree of care or circumspection in a child of tender years as in an adult:”
I think that th'e circumstances which are disclosed in this, case justified the 'court in submitting the question as to the plaintiff’s contributory negligence to the jury; She was a girl, sixteen years, of age, riding upon the back seat of an automobile slowly approaching a railroad track, the automobile in charge of a competent chauf-. feur and her father, the owner of the automobile, on the seat alongside of him and directing its movements, the automobile proceeding very slowly up an incline towards the track, working . its way" through a crowd of - people who were almost, touching it in all directions, alongside of a depot at which trains on; the- road stopped. The plaintiff on the back seat of this automobile, distracted by the attention of the crowd in the street, was without authority to eon
I think, therefore, that this question of contributory negligence was properly 1‘eft to the jury.
The plaintiff also insists that it was error for the court to refuse to charge several requests which were refused except as already charged. I think these requests to charge were properly refused if a failure'tó look and listen was not, as matter of law, contributory negligence. The court charged the jury that the plaintiff was bound to use all the diligence that was reasonably to be expected from a young woman under the'circumstances and in the condition and situation in which the . evidence shows her to have been placed; that the jury were to say whether or not she did use such ordinary prudence as is to be expected from' a person of her age under the circumstances,- or even of a mature person, or any person, riding in an automobile, saying, “ If you find that she omitted to do what should be expected from an ordinarily prudent person at that time, if you find-that she should have looked down that track, that she should have seen that train,, and that she omitted any of these precautions, then she cannot recover in this case, because the accident would at least have been Contributed to by her own fault or negligence ; she might have avoided it- and did not, and if you find that, why, then, that will end the case then and there.” The jury were, therefore, instructed as a matter of law that if they found that the plaintiff should have looked down the track, and should have seen "the train, and that she omitted any of these'precautions, then she could not recover. At'the end of the charge, at the request of the defendant, the court again charged the jury that they could not find a verdict for the plaintiff. •unless they first found- that the plaintiff exercised all reasonable care on her part. The' defendant’s counsel then requested the court to charge that if the jury found that if the
"We have examined the other requests to charge which were refused,, but we think, in view of the actual instructions by the court to the jury, that -there was no-error which would justify a reversal of the judgment. Getting back to the real proposition in the case, it is whether the evidence of a failure of the plaintiff -to look up" and down the track, considering her age" and sex, and the surrounding circumstances at the time of the accident, it was,, as a matter of law, contributory negligence. If it was "not, then I- think the casé was: properly submitted to the jury, and the recovery should be sustained.
. The jury found a verdict for the plaintiff for $35*000, and after serious, consideration, á majority of the court has come" to the conclusion that this verdict was excessive, and that it should not be sustained for more than $25,000.
Our conclusion, therefore, is that the judgment and -order shduld be reversed and a new trial ordered, with .costs to the appellant tf abide the event, unless tlie plaintiff stipulates to reduce the recover to $25,000, in which event the judgment as so. reduced- and the order appealed from will be affirmed, without costs of this appeal.
- Patterson, P. J., and Laughltn, J., concurred ; Houghton and -Clarke, JJ., dissented. .
Dissenting Opinion
(dissenting):
I dissent from an affirmance of this judgment.
It is upon their application to this case rather than. upon'the existence of the rules of law -themselves- -that the court differs.. It is well"
No rule, I apprehend, is better settled than the one that a single traveler on a highway, whether on foot or in an open vehicle, who seeks damages for injuries from a collision at a railroad crossing, must prove, if of sufficient age and understanding so to do, that as he approached the crossing he looked and listened for approaching trains.
This rule is so strict that where a temporary obstruction to vision arises, as from smoke and steam, he must wait until such obstruction has ceased. (Keller v. Erie Railroad Co., 183 N. Y. 67.) And the law is so careful that so reasonable a rule shall be observed, that when a traveler could have seen an 'approaching train if he had looked, and testifies that he looked and did not see it, it will deem his testimony incredible, and hold him guilty of contributory negligence as matter of law in failing to exercise ordinary caution. (Dolfini v. Erie R. R. Co., 178 N. Y. 1.) The requirement of proof of looking and listening is such that where one is killed in such an accident the testimony of his companion that he himself looked and listened and did not hear or see the approaching train does not establish the fact that the deceased person would have failed also, had he looked and listened. (Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 424.) .
Nor is one relieved from' this duty to look and listen because he. is riding in a vehicle as the guest of another where he has the opportunity so to do. Such is, the express holding of Brickell v. N. Y. C. & H. R. R. R. Co. (120 N. Y. 290), and I know of no decision overturning the rule there laid down or questioning its correctness. Hoag v. N. Y. C. & H. R. R. R. Co. (111 N. Y. 199) is not to the contrary or less stringent. In that case the wife was 'riding with her husband, who was driving, and both were killed. The husband had stopped his horse twice before attempting to cross the tracks, and the presumption was indulged in from that and other facts, that both saw the approaching train, and that the wife had no reason to suspect that her husband.was about to cross in front of it, and hence was not called upon to warn him, and, therefore, that the question of her contributory negligence was one for the jury. Finch, J., says: “ The deceased and her husband either saw the passenger train approaching as they neared the track, or
This ’ carefully chosen language cannot he interpreted as holding that the wife was under, no obligation to look and listen for approaching trains. On the contrary, it is expi-essly said -that such -was her .duty, and that, presumably, she had done so- because-the lioi'se had .been twice stopped apparently for no other purpose than observation.- Having, performed her-duty in this- respect, and having reason to believe that her husband would not attempt.to cross’ in front of the approaching train, or having no reason to apprehend that he was about to do so, manifestly she was not hound,, as matter of law, to - jump from the vehicle or to interfere with his driving, or to do anything further to prevent his sudden and; unexpected act.
Confessedly, the Hoag case is on the border line. with respect 'to proof of lack of contributory negligence. Applying its liberal rule, however,, in the .case at bar,- I think- the plaintiff failed to prove freedom.from contributory negligence and that, the judgment •in -her favor must -be reversed." '
The plaintiff was sixteen years'of age, strong, bright, alert, and' with good .eyesight. .'She was sitting in the rear seat .of .¿n open automobile which was approaching the track at an extremely slow
By its various requests the defendant, in substance, asked the court to charge that in view of the distractions to the chauffeur and his difficulty in threading his way through the crowd-v^ith his machine, it was the duty of plaintiff and the occupants of the car to be on the lookout for an approaching train, and not to rely wholly upon his vigilance in that respect. These specific requests were refused, except as already charged.
• While the court in its main charge did instruct the jury with respect to the general duty of plaintiff to avoid the accident, he failed to instruct them in the specific manner requested by the defendant, and I think, under the circumstances disclosed, the defendant was entitled to have these Specific requests charged. '
■ A situation was proven upon the trial to which! the requests to charge particularly applied, and which the.charge as given did not meet, and I think it was error for the court to refuse the requests.
The injuries of the.-plaihtiff were very serious and excité extreme sympathy and the defendant was clearly negligent, but I see no way of affirming the judgment in her favor except by the ignoring
Clarke, J., concurred.
Judgment and order reversed and new trial ordered, with costs to.appellant to abide event, unless plaintiff stipulates to reduce recovery to $25,000, ip. which event judgment as so .reduced and order affirmed, without costs. ' Settle order on notice.