40 N.Y.S. 783 | N.Y. App. Div. | 1896
This action was begun October 5, 1894, to recover damages for the alleged negligent killing of the plaintiffs husband by the defendant. October 5, 1892, the plaintiff’s intestate was run over and killed by one of defendant’s cars at its passenger station at the village of Addison.
Defendant’s double-track railroad extends easterly and westerly through the village of Addison, having its two main tracks on the south side of the passenger station. On the north side of that station, and about 280 feet east of it, a track called a “ lead track ” or “ cross over ” branches from the most northerly of the two main tracks, and diverges northerly therefrom and crosses a gravel walk at a point about 150 feet west of Tuscarora street, which is also about the same distance from the passenger station. This “ lead track ” or “ cross over ” connects the main track east of the station building with a side track, known in this case as the “ platform switch.” Another side track, called in this case the “ hill switch,” diverges from the “ platform switch.” These two side tracks are connected with the main tracks at a point about 600 or 700 feet west of the station.
Tuscarora street extends northerly and southerly through the village, crossing the defendant’s main tracks at a point about 300 feet east of its passenger station. The Eagle Hotel is on the west side of Tuscarora street and a few rods north of the railroad. On the west side of this street there is a sidewalk which crosses the railroad. For thirty years the defendant has maintained a gravel walk, extending westerly from the Tuscarora street sidewalk along the north side of the main tracks of the railroad, for the convenience of persons going to and from the passenger station. This gravel walk is crossed by the “ lead track ” or “ cross over ” at a point about midway between Tuscarora street and the passenger station. The plaintiff’s intestate left the Eagle Hotel for the purpose of taking train No. 29, which arrived at that station at ten-twenty a. m. To reach the station it was necessary for him to pass over this gravel walk lying on the north side of defendant’s main tracks and crossing the “ lead track ” at a point about 150 feet west of Tuscarora street and 150 feet east of the passenger station as before stated. While he was in the act of crossing the “ lead track ” he was struck
The learned trial judge in submitting this question to the jury said : “ The witnesses for the plaintiff who testified upon that subject say that they were standing at the end of the lawn, between the-easterly end of the railroad station building and the west side of the lawn; that they were a hundred or so feet from the place where the switches cross the walk; that they saw Warfield coming along the walk; that he was coming towards them, going west; that at that time this portion of the train, which was being switched, was on the northerly main track, and was going to the east away from Warfield. That, they say, was the condition of affairs when War-field turned from Tuscarora street to go west towards the station. If that was the condition of affairs, of course the impression that would have been conveyed to Warfield’s mind, if he saw that in that way, was that this train was going away from him, and there-was no special danger to be apprehended from it. That must necessarily be the fair inference if you find that was the fact.. They say that Warfield continued to the west, and this train changed
The learned judge then called attention to the testimony of the defendant’s employees on the train, which was to the effect that the train did not move forward to the east after it left the gondola on the switch. This question of fact was fairly submitted to the jury under instructions which, so far as this issue is concerned, were not excepted to, and was found for the plaintiff. It is conceded that there was no person at or near the point where this gravel walk crossed the “ lead track,” whose duty it was to give notice to ¡Dersons of the approach of trains; no bell was sounded nor whistle blown giving notice of the approach of this train. Fo employee was stationed on the rear end of this train to give notice to persons of its approach. Under these circumstances, the issue of fact having been found in favor of the plaintiff, the evidence justified the conclusion of the jury that the defendant was negligent in the management of this train, and that by reason of such negligence the plaintiff’s intestate was killed.
The learned counsel for the defendant insists that the evidence does not show that the plaintiff’s intestate did not, by his own negligence, contribute to the accident. The witnesses who saw the decedent approaching the station testified that they did not see him look to the east or to the west for the approach of trains, but that he traveled on this gravel walk westerly towards tlie passenger station looking straight ahead.
The rule which requires a traveler on a highway which crosses a railroad to look and listen for approaching trains, is not applicable to persons who are crossing a track on a walk of the railroad at a station for the purpose of going to the station to become passengers. (Terry v. Jewett, 78 N. Y. 338; Brassell v. N. Y. C. & H. R. R. R. Co., 84 id. 241; Thomas Neg. 243 et seq.)
At the close of the evidence the defendant’s counsel moved for a nonsuit on the ground that the plaintiff had failed to prove facts sufficient to constitute a cause of action; that the evidence was insufficient to justify the jury in finding that the defendant was negli-'
I think the evidence justified the submission of the case to the jury, and that the judgment and order should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.