108 N.Y.S. 245 | N.Y. App. Div. | 1908
Lead Opinion
This is an appeal from á judgment in favor of the plaintiff in an action brought to recover damages for personal injuries, and-the order denying defendant’s motion for a new trial.
Plaintiff was injured while attempting to cross the railroad tracks of defendant in front of one of its trains at Van Cortlandt Park. He was the chauffeur driving- an automobile in which there were seated at the time besides the plaintiff, Frank B. Read, Mr. and Mrs. Noakes and their daughter. At this crossing defendant maintained a doiible track. The automobile coming from the west had safely crossed the first or south-bound track and was struck by a passenger train going north on the north-bound track. As plaintiff .approached this crossing from Spuyten Duyvil creek, a dis-. tance of 175. feet, he had a. clear and uninterrupted Aiew of the track to the south upon which the train was coming for a distance of 2,000 feet to. Independence bridge. The train Avas running at a speed of forty miles an hour when it passed under Independence bridge; when half-way between the bridge and the crossing and distant about 2,000 feet from it, the speed was reduced to thirty-five miles an hour, and it passed over the crossing at a speed -of fifteen miles an hour. The plaintiff testified that after the auto
The evidence of the plaintiff is that when he crossed .the bridge over the creek he looked toward the south to see if there was a train coming; that he was able to see as far south as Independence bridge ; that he saw no train; that he then proceeded very slowly over an- up grade to the crossing; that when he was about twenty-five or thirty feet from it he looked again to the south and again saw the tracks as far as Independence bridge and that he saw no train approaching.. At the time of the accident several hundred people had gathered at the station twenty feet from the crossing, waiting for the arrival of trains; they were standing on both sides of. the tracks, a. south-bound train being scheduled to arrive at this station one minute after the north-bound train, and both were on time. The south-bound train was standing at a water tank one hundred and thirty feet north of the station at the time of the accident. It is agreed by all that this train was not moving, consequently it presented no impending danger to plaintiff. Many persons who had been participating in golf' and ball games in the neighborhood were proceeding down the road to the station, the automobile being hemmed about by these people; they were in front, in its rear and on both sides, all going in 'the same direction. Plaintiff did. not stop as he approached the crossing, and as he was passing over the first rail of the north-bound track some of the people about him screamed and fell back; he then looked to the south and saw the approaching train about four hundred feet away and immediately gave the machine more power in an effort to cross ahead of the train, which struck the automobile, killing Mr. Read and injuring plaintiff and the, other persons riding with him. Miss Noakes subsequently brought an action against this defendant for damages alleged to have been sustained by her, and the recovery has been upheld upon the ground that her age, sex and the position she occupied in the automobile removed the case from the rule which imposes the duty upon a passenger in a vehicle approaching a railroad crossing of looking and listening, it having appeared on the trial that she neither looked nor listened (Noakes v. N. Y. C. & H. R. R. R. Co., 121 App. Div. 716); and the Appellate Division, first department, in a carefully written opinion by Mr. Justice Ingraham,
The judgment and order must be reversed and a new trial granted, costs to abide the event.
Jenks, Hooker and MiLLERj JJ., concurred; Gaynor, J., read for affirmance..
Read v. N.Y.C.& H. R. R. R. Co. (133 App. Div. 228.)—[Rep.-
Dissenting Opinion
The plaintiff was injured while crossing the'defendant’s double track railroad in a motor car which he was driving. His employer was also in the car with his wife, son, daughter and another person. The car was going East along a public road, and the tracks ran North and South. The crossing was in a large city park called Van Cortlandt Park in the open Northern territory of the City of New York. The motor car had passed over the first track and was struck by the engine of a passenger train going North at or about the right hind wheel as it was nearly over the second track. All the way from a point on the road whence the motor car had come, about 170 feet from the first track, i. e., at a bridge over Spuyten Duyvil Creek, the view south along the railroad tracks was clear for 2,000 feet, namely, to a park, road bridge under which the tracks ran. The plaintiff' testifies that he looked south along the tracks at the said point 170 feet from the first track, and again when 25 to 30 feet from the said track,- but saw no train.- Except for facts now to be stated, the decision in Dolfini v. Erie R. R. Co. (178 N. Y. 1) would apply to the case, Í. e., .that the plaintiff must have seen the train in time to avoid the collision if he had looked, for lie could not have looked without seeing it if it was 'there, i. e., between the crossing and the bridge under which it came. But the facts are such in this case that the train might not yet have come under the bridge and in sight when the plaintiff looked even the second time.
As he came along the road to and upon the crossing there was a
Considering how sloxvly the motor car was moving with the crowd pressed about it, it cannot be said that when the plaintiff looked south when 25 to 3.0 feet from the first track the train had
The learned trial judge was not in error in refusing to charge the request of defendant’s counsel that if the train was in sight when the plaintiff “ looked 30 feet from the track ”, proceeding “ was negligence on his part and he cannot recover ”.. In sight might mean 2,000 feet away — coming under the bridge — and whether it was negligence to proceed, he being so close to the track and the train so far away, was a question of fact and not of law. Bequests have to be technically correct in order' to base error on their refusal.
Ho claim is made that the deferidant was not negligent. In the case of Noakes v. N. Y. C. & H. R. R. R. Co. (121 App. Div. 716), which grew out of this same collision, the question of the defendant’s negligence was disposed of. Its negligence in coming to such a crossing not only in the city but in a public park and with a crowd ahead, at such a rate of speed, seems to have been gross.
The judgment should be affirmed.
Judgment and order reversed and new trial granted, costs to abide the event.