63 N.Y.S. 402 | N.Y. App. Div. | 1900
The plaintiff sues for injuries alleged to have been received by-accident at the city of Middletown, in Orange county, on the 11th day of December, 1897. He was then in his thirteenth year, and undoubtedly sv/L juris. The accident occurred at a street crossing of the defendant’s tracks where he had been for a long time in the habit of crossing three or four times a day, and he. was familiar with the trains going both ways, had waited many times for them to pass, and clearly understood the dangers incident to the crossing. On the morning of the accident he was on his way to the grocery store, and was to cross the tracks from the northerly to the southerly side. When he reached the crossing there were two freight trains about 150 feet apart, and going west. They were going slowly. The first one was made up of high box cars. He waited until it had passed him, or, as he says, “ I watched this one out of sight,” and then, after listening and looking up the track to ¿he west, and seeing no train and hearing no bell or whistle, he started across, and before reaching the east-bound track collided with an engine of an eastbound train, which was running at the rate of fifteen or twenty miles an hour.
There was ample evidence to justify a finding by the jury that the east-bound train gave no signal of its approach to the crossing, but the dismissal was apparently based on the fact that as, in the words of the learned trial justice, “ he was struck not by the front of the locomotive, but by some overhanging part,” he must have been standing too close to the track. His evidence, however, is to the effect that he was not standing by the track, but was walking at the time; that he did not see the train at all until .he was struck, and that he looked and listened for the bell and train before attempting to cross. The morning was very foggy, but the evidence indicates that sight was unobscured for a distance of at least 200 feet. Nevertheless, his statement that he did look but did not see the train required the submission of the question to the jury as one of fact, and forbade its disposition by the court as a matter of law.
In the case of Shaw v. Jewett (86 N. Y. 616) the accident occurred
In Greany v. Long Island R. R. Co. (101 N. Y. 419) it was held that while a person approaching a railroad crossing is bound to make all reasonable efforts to see, that a careful, prudent man would make in like circumstances, his failure to see an approaching train does not of itself discharge the company from liability for negligence on its part. Judge Danfobth, writing the opinion of the court, and referring to the rule in Shaw v. Jewett (supra), said (p. 425): “ I know of no exception to the doctrine that where there is.any evidence, direct or inferential, of care or caution on the part of the person injured, the question whether it was in compliance with that rule is for the jury.”
In Miles v. Fonda, J. & G. R. R. Co. (86 Hun, 508; affd., 155 N. Y. 679) plaintiff testified that she looked but did not see the approaching train. The court said (p. 509): “ On the whole case, as the facts appear on this trial, I think the question of contributory negligence was for the jury within principles established in Hoag v. N. Y. C. & H. R. R. R. Co. (111 N. Y. 199); Massoth v. D. & H. C. Co. (64 id. 524) and like cases. In the Hoag case deceased •and her husband could see down the track a long distance for •seventy feet before reaching it, yet the court held the case should have been submitted to the jury.”
In Seeley v. N. Y. C. & H. R. R. R. Co. (8 App. Div. 402) it was held that on proof that the deceased looked both ways before crossing a track, the question of contributory negligence is for the jury. The court said (p. 406): “ But whatever explanation may be
To the like effect is the case of Judson v. Central Vermont R. R. Co. (158 N. Y. 597).
. The most recent expression of the Court of Appeals on this subject is in the case of Zwack v. N. Y., L. E. & W. R. R. Co. (160 N. Y. 362). There, a boy, ten years old, injured at a railroad cross-. ing in a city street, testified that on arriving at the center of the first side track he stopped and looked both ways; that he saw or heard no engine from the east, hut did see two engines coupled together coming from the west; that he waited for them to pass, and then immediately started across the tracks, and when about twenty-five feet from where he stopped to allow the engines to pass, was struck by a passenger train coming from the east. 27o circumstance appeared to indicate that the approaching train was not in view before he reached the track, and observable to any one looking in its direction, yet the court held that the question of contributory negligence, as thus presented, was one of fact and not of law. The court said (p. 367): “ But, it may be asked, if he looked towards the east at all why did he not see the coming train and avoid it ? That question may be asked, and generally is, in every case of this character. It is an argument to he addressed to the jury, and not to a court dealing with questions of law only.”
In view of these decisions it seems unnecessary to refer in detail to the many cases cited by the respondent wherein under given eir
In this case, however, the plaintiff repeatedly testified, in answer to his counsel, to the defendant’s counsel, and to the court, that he did look in the direction from which the train came and that he did listen. If this be true he did all which the law requires of him. That he did not see the train is a circumstance which may very strongly tend to negative his statement, but the extent to which it does so is for the jury to determine and not for the court.
The case must be retried.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.