73 N.Y.S. 827 | N.Y. App. Div. | 1902
- ...Upon the evidence in this case¡ the'jury had a right to finch-amongst other things, as follows : ■ .
For some time prior to the day of the accident, March 1, 1900,. plaintiff was engaged in carrying the mail, from the -village of Mallory. to defendant’s cars at the station of Mallory: This station was.. one little used, situate upon a. line of road operated by defendant, running from Syracuse northerly to Richland. Defendant’s tracks-passing it consisted of a main track and a siding- From the door - leading into the passenger room of the station to the nearest rail of ', the main track was twenty-one feet and three inches,.and fo the first-rail of' .the side track was nine feet and four inches. . The distances.
Plaintiff took his mail bag and followed a little path in the snow leading from the door of the station directly to the passenger track; Southerly of this path, and, therefore, in the direction from which the train was approaching, and about sixteen feet from the path,, were some freight cars, which obstructed the view in that direction. The tracks, both main and side, were parallel for a long distance towards the south. Instead of the passenger train it was a snow plow driven by a engine which was approaching. It was going at the rate of thirty-five or forty miles an. hour, not drawing to any stop for the station, ringing no bell and blowing no whistle, except as it must have blown at the crossing above suggested and except as it gave danger signals before striking plaintiff. It was running on. the time of the passenger train as a first section thereof.
Plaintiff, according to his evidence, just crossed the side track,, and, according to the evidence of another witness, did not come-within about three feet of the main track. He says: “ I just-stepped across this rail (of the siding) and I see this train right on to me; I made a spring back and was caught.” And again, “ After-leaving the-door at the point where I saw the smoke, I went just, across the switch track; in going that distance from the door across, the switch track I couldn’t see up the track or south on the main track; the box cars obstructed my view of the track.”
An ordinary passenger or mail coach projects over the track about two feet five inches. The snow plow projected over from, seven to eleven inches further. *
Of course defendant’s version of the manner in which this- accident occurred differs very materially from plaintiff’s. But we must
It is claimed that the defendant was guilty of negligence in running this snow plow by this station at so high a rate of speed without ’adequate signals. Assuming simply for the purposes of this opinion, rather than actually holding, that the defendant might have been found guilty of negligence in these respects, we pass to the consideration of plaintiff’s own Conduct, and to the determination of the question whether he was so free from negligence that he can recover.
Upon this issue his counsel has urged with much earnestness and ability that under all of the circumstances plaintiff had a right, to rely upon the approaching train being the ordinary passenger and mail train; that having in mind the brief stoppage "of such trains and the expeditious performance of his duties it was proper for him tó go to the side of the track before the train came to a full stop; that his view of the ajoproaching train was obstructed; that his position would have been perfectly safe if the train had been the one he expected; that it was only made dangerous by the unexpected passage of the show plow at a high rate of speed and projecting several inches further over the track than the cars which he expected.
This is substantially the theory upon which the case was submitted to the jury upon this point by the learned trial justice. While it has thus been urged with much force which entitles it to careful consideration, we think this contention is subject to defects, and that, if sustained, it Avould permit persons approaching moving trains to measure their conduct by altogether toó liberal rules of chances and risks and would impose upon railroad companies too rigorous and burdensome responsibilities.
There are certain facts \yhich must be charged against plaintiff upon the undisputed evidence. He" kneAV that a train avbs coming. No other signals and no more extensive vieAV of the track avbs necessary to apprise him of this. He expected that the head, at least-, of the train would run beyond Avhere he Avas. While perhaps the chances Avere that it AVould be the mail train for which he was waiting, we do not think that he had a" right to absolutely assume or-rely upon this. There had been a considerable fall of snoAV, and plaintiff, of course, kneAV that the defendant used snoAV ploAvs. It
Adams, P. J., McLennan, Spring and Williams, JJ., concurred.
Judgment and order reversed upon the law, thé court having examined the facts and found no error therein, and new trial •ordered, with costs to the appellant to abide the event.