Woodard v. New York, Lake Erie & Western Railroad

106 N.Y. 589 | NY | 1887

Lead Opinion

Finch, J.

—It is impossible to read the charge with which the learned trial judge submitted this case to the jury without a strong conviction that his judgment hesitated upon the verge of a non-suit which we think he should have granted. He may have believed that, with a- clear demonstration which he gave of the plaintiff’s failure to show directly or by reasonable inference that the conduct of deceased was free from negligence contributing to the injury, the jury would render an appropriate verdict upon the question as one of fact. The result, however, was, as commonly happens, in favor of the plaintiff; the case comes here on appeal from that conclusion.

There is substantially no dispute about the facts. Two tracks of the Erie railroad, one known as the Buffalo division main track, and the other as a western division main track, cross Oanisteo street, in the village of Hornellsville, at an oblique angle. North of the Buffalo track is what is known as the Osborn house switch, which leaves the main track at a point westerly from the street and crosses it nearly parallel with the main line, but leaving an open space between at the narrowest point of seven and one-half feet. Between the two main tracks there is an open space of ten feet six inches, and south of that are other switches. The map shows that in all there are six tracks crossing Oanisteo street, the line of the street and of the rails making quite an acute angle as they approach each other from the north and west. Philo P. Woodard, the plaintiff’s intestate, was employed at a coal yard owned by one Houck, which fronted on Oanisteo street and ran back to the premises of the railroad. While so employed be became entirely familiar with the crossing, and especially with the use made of the Osborn house switch. Upon that was placed the coal destined for delivery in Hornellsville, and the cars containing it were habitually shunted down that switch and across the street to the place of unloading. The plaintiff himself had often inquired at the freight office for his employer’s coal and directed upon what switch the cars should be placed. One coming down southeasterly along Oanisteo street from Houck’s coal yard, would have at his right, first, a vacant lot, bounded by a high fence, towards the rails, and, next, a building known as Grotty’s store. While passing that the track west of the crossing could not be seen, but when the southeastern corner was reached, being thirty-one and a half .feet from the intersection of the street with the rails, the switch could be seen to the west a distance of fifty-seven feet. When within ten feet of the track it could be seen a distance west of one hundred and thirty-seven feet, and the map shows that when within two feet of the track the switch could be seen for its whole length to the west and some stretch of the main track besides.

The plaintiff’s intestate and one Phelps approached the crossing carrying a basket of coal brought from Houck’s, and deceased was struck at the southerly rail of the switch, and when almost across it by one of the coal cars kicked down from the west and moving by its own momentum. The accident occurred in the middle of a bright and clear day when nothing existed to obstruct or hinder the sight; when the injured man was on foot and could have stopped at any instant, and when the merest glance along the switch to the west would have developed the approaching danger. The car and the man met at the intersection of track and of street. The highest speed of the former is put at four miles an hour, and if we call the walk of the latter as slow as one mile an hour, the cars moved four feet while he moved one; and when he was ten feet from the crossing they were but forty feet from the crossing and moving down upon it in plain sight If he was walking faster they were still nearer, and it is absolutely certain that at any time when within ten or fifteen feet deceased had only to look and pause to be safe. Indeed Cook, called for the plaintiff, swears that the cars were within ten or twelve feet of them when the two men stepped upon the track. So that the facts make it absolutely certain that Woodard and Phelps either looked and saw the car coming undertook to cross in front of it, or did not look when that was their duty, and went blindly up the track taking the chances of what might occur.

The evidence is very slight that either of them looked to the west at all after passing Grotty’s store. Phelps admits that he looked only while passing that store, and so at a time when he knew that he had not guarded against the danger of the shunted car likely to come upon the crossing at any hour of the day; but if they did look after passing that point, the inference is inevitable that they saw the cars coming and misjudged their ability to cross in their front. The case is one where ordinary prudence and care were not shown or inferable, and for which no excuse or palliation can be given.

For the theory that their attention was diverted by the passage of a train to the west on one of the tracks south of the switch, and the movement of some coal dumps on another, so far from being an excuse for not looking as they approached the switch is itself an omission of an act of ordinary prudence. It concedes that they did not look for cars approaching on the switch, and seeks to excuse the omission. If they did look after passing the store they saw the coal cars coming, and could not help it, and any excuse for not looking is immaterial. Nothing in their situation or surroundings made it their duty to watch a train passing on another track and rapidly clearing the crossing.

Looking at that could do no good and subserve no useful purpose, and did not effect or influence deceased’s action while approaching the switch, and the excuse amounts to this and this only, that a man may prudently step upon one track without looking to see if it is clear, because he sees cars on another track which do not menace his safety or affect his action. A passing wagon on the street, or a new sign on some building may equally have diverted his attention, but the fact in each case would only have shown his lack of ordinary care and prudence. The west bound freight train had merely left the crossing when deceased was struck, and constituted neither obstruction nor danger to his further passage. One does not approach a railroad track with senses alert and watchful when he suffers his attention to be needlessly diverted from the present and immediate danger. . To be an excuse, the object or cause which so diverts his attention must be something which can justify consistently with prudence, the withdrawal of attention from a near and imminent danger. Otherwise it is mere needless curiosity, which itself amounts to inattention.

As has become quite common, the case of Greany v. L. I. R. R. Co. (101 N. Y. 419) is cited as authority to support the plaintiff’s judgment. That case was close enough upon its facts to invoke a considerable dissent, but decision turned upon features not here presented. There the plaintiff herself testified that her crossing was blocked by a train standing at a station, and she stopped waiting for it to move. Its presence affected her action and properly engaged some part of her attention. She further said that she stopped just as it started; that as she came up to the track she stood and looked both ways and saw nothing; as she took a step or two, and just as she did so, saw a train coming from the east, but so close that she could not escape. It was coming at a dangerous rate of speed. Here the coal cars were moving without an engine, at about four miles an hour, and the west bound freight was on the third track ahead of deceased, with two open places, one of seven and one of ten feet intervening, and clearing the crossing at a rate which left deceased’s progress entirely unaffected. The men were on foot, wholly masters of their own movements, and whether they looked or did not look as they approached the track, their conduct was negligent.

There was no question for the jury to pass upon and the plaintiff should have been nonsuited.

The judgment should be reversed and a new trial granted, costs to abide event.

Rapallo, Earl and Peckham, JJ., concur; Danforth, J., reads for affirmance; Ruger, Ch. J., and Andrews, J., concur.

---

Dissenting Opinion

Danforth, J.,

(dissenting).—The action was to recover damages for injuries sustained by the next of kin of Philo P. Woodward, from one of the defendant’s trains having struck and killed Mm while on a public street in the village of Hornellsville. The case was submitted to a jury, and they found for the plaintiffs. The defendant moved at special term upon a case and exceptions for a new trial. It was denied, and, after judgment, the defendant appealed from the order denying a new trial and from the judgment, to the general term, where both were affirmed. It now appeals from the decision of the general term, and brings up for review the order and judgment.

In support of the appeal, the learned counsel for the appellant argues that the trial court erred, first, in refusing to grant a nonsuit when moved to do-so, “ upon the ground that the proof did not show that the deceased was free from contributory negligence,” and, second, in refusing to charge in certain particulars, as requested by him.

The court, after calling the attention of the jury to the facts in evidence, so fully and fairly as to suggest to the defendant no need of alteration or addition, said: “The law required of Woodard in crossing that railroad that he should look in every direction from which danger was liable to approach, and if he saw a train of cars, or a single car “approaching him in such manner as to threaten him with collision, it was his duty to stop and wait for it to pass, or hasten his steps so as to cross before it reached him, and this he must do at his own risk. But the evidence is that these men did not see the cars that were approaching. The plaintiff has proved by Phelps that he did not seethe cars approaching; that after he passed the corner of the Grotty building, he turned his eyes in that direction, and did not see them approaching. What was the reason of that? The cars were approaching, and the atmosphere was clear, and his eyesight was good enough to enable him to perceive them. Was it because his look in that direction was before he arrived at the point from which he could see up the track to where the cars were? If so, and he did not look again, he was guilty of negligence, which would prevent Mm from recovering for any injury he received, unless there was something else to draw off his attention, at the time he might have seen these cars approaching.”

After some other remarks, he added: “ In discussing this, question, you are to inquire, did Woodard exercise that degree of care and caution for his own safety which a reasonably careful and prudent man would have exercised under the same circumstances. If that fact is established satisfactorily to your minds, a cause of action is made out, and the plaintiff is entitled to recover; if not, no cause of action has been made out.”

No exception was taken to this or any other exposition of law applicable to the evidence, but the defendant’s counsel at the close asked the court to charge the jury that the proof showed that the approaching cars which struck Woodard could be seen during the entire time he was crossing ten feet to the track, and-that he had ample opportunity to see them, notwithstanding the passage of the-other trains.

The court: “I think I have covered that ground. I have said that the cars were in sight during the time he was passing over those ten'feet, and unless there was something-else that distracted his attention, he was bound to have seen them.” Nor was there any exception taken to this statement. The learned counsel then requested the court to charge as matter of law “that there was no passage of other trains sufficient to justify him in not looking.” The court replied, “I leave the question to the jury.” To this there was no exception. The learned counsel for the defendant subsequently asked the court to charge “that as a. general rule, a party approaching a track is bound to look for approaching trains up to the time he steps on the crossing.

By the court: “As a general rule, that is so. Having looked at a distance of ten feet or fifteen feet from the rail, and not seeing an approaching train, would not relieve him from the responsibility of looking again. It is only for the jury to say whether there were circumstances which properly attracted and diverted his attention from the approaching cars.” And to this the counsel for the defendant excepted.

The propositions which allege error must stand or fall upon facts disclosed on the trial, and so require from us an examination of the entire evidence, for the contention of the appellant now is that no facts are established “from which the negligence of the defendant and the absence of contributory negligence on the part of Woodard could be legitimately inferred.” And this examination is to be made in view of the entirely well settled rule uniformly applied by the courts when the issue is one of fact and the case triable by a jury; that the question cannot be taken from them if the evidence in any reasonable view would warrant, a verdict, or, as was said in the recent case of Bagley v. Bowe, decided in this court March 25, 1887 (6 N. Y. St. Bep., 842), “if there is ground for opposite inferences, and a conclusion either way would not shock the senses of a reasonable man, then the case is for the jury, although the judge may entertain a clear and decided conviction that the truth is on this or that side of the controversy.”

It is difficult in many cases to distinguish between the province of the court and the province of the jury, but the hüjdicíal mind cannot be put in the place of the mind and ponscience of the juror without disturbing the fine which should separate the two and creating endless confusion. The opinion of one. person, however learned, cannot be substituted for the unanimous concurrence of twelve; and in this case, the question the trial judge- had to decide was not whether if he had been on the jury he would have found that there was negligence of the defendant and no negligence of the person killed, but whether there was evidence from which a jury might reasonably so find.

If as the appellant claimed by his motion for a non-suit, and his exceptions, and by this appeal, there was no dispute about the facts, was there not ground for dispute as to the proper inference to be drawn from them ? The learned judge held that there was, and the only question before us is whether he decided rightly. The appellant asserts there was no such evidence, that there was no dispute about the facts nor any weighing of conflicting testimony, but an entire lack of evidence upon the affirmative of the issue. If he is right then the plaintiff’s case rested on averments only, and not only the trial court, but the special term and the judges of the general term are in error, for all agreed that the case called for something more than an opinion of the court upon a mere matter of law arising upon facts not disputed.

The facts as disclosed in evidence were as follows: The defendant’s road runs through the village of Hornellsville, in a south-easterly and north-westerly direction, and in so doing crosses with six tracks at an acute angle the most traveled street in Hornellsville, known as Oanisteo street. About noon on the day in question the decedent was north of the railroad, and on the west side of Oanisteo street at Houck’s coal yard, and with one Phelps left that place carrying between them a bushel basket full of coal for delivery at Phelp’s house, south of the railroad. They went in that direction along the west walk, the decedent being on the outside and having hold of the basket with his right hand, until both passed the northerly rail of the first track, and Phelps cleared the other, but Woodard was run into by two loaded box cars and thrown down, the brake beam caught him, and after going about thirty feet the cars lost their momentum, and when taken from under the wheel he was found to be badly injured and soon after died. Whether his death was caused by these injuries or was the natural result of the medical and surgical treatment he received, was one of the questions mooted by the defendant upon the trial. But it was submitted to the jury in a manner satisfactory to the defendant and the propriety of their verdict in that respect is now questioned. Whether the injuries were caused by the negligence of the defendant anc* whether the decedent exposed himself to danger voluntar* ily, are the only subjects of inquiry.

First. Was the defendant negligent ? Upon this inquiry very few words will answer. From a point about 250 feet west of the street crossing, and to a point east of it, the grade of the railroad is descending. The yard-master controlled an engine and by it so impelled the cars in question that when detached they had acquired such momentum as carried them rapidly down the descending grade. “The velocity,” says the defendant’s witnesses, “depends on the push from the engine. The purpose is to send the cars across the switch to the yard.” So it was this morning. The yard-master, who superintended the operation, said: “We could keep the engine attached and have control of the train,” but they did not, and, continues the same witness, “We were clearing the switch. We would couple together from the west end and then pull up, throwing the loaded cars back in on the switch. We were doing this that morning; the engine was standing 250 or 300 feet from the westerly line of the street; I was standing at the lever to move the rail to let the cars run on the switch; that ‘point is about 150 feet west of Canisteo street; I think two or three cars struck Woodard.” As there was no engine attached to these cars so “pushed” or “kicked” forward, so there was no person in charge of them, nor any method to control or stop them, nor was there notice of any kind by bell, whistle, or flagman of their approach. They were simply stored with energy and put in motion by the locomotive and let go, to stop only when the power was exhausted, or some impediment, whether dead matter or, as in this case, a living body came in their way. Not only does the evidence show the general use of the street at this place, but that at the very time of the accident there were several persons upon it, and many tracks in use by trains running or stationary. Yet upon an oath of an officer of the defendant it was made an issue by its pleadings whether such a crossing of the street by the railroad was a dangerous crossing, and whether, in respect to it, there was default or negligence on the part of its servants or agents. As to the first, there can be no question, and, in the omission of the defendant to adopt some precautionary measures to lessen the danger to which a wayfarer was exposed, a court or jury would be of little use if they failed to find corporate culpability, or in view of the statute regarding signals from the locomotive at the crossing of a public road, to find that the deceased came to his death by the direct negligence of the railway company. The statute (Laws of 1850, chap. 140, § 39), imposed upon this defendant the absolute duty of placing a bell upon the locomotive, whose agency caused the injury, of ringing that bell at a distance of at least eighty rods from the street crossing and continuously ringing it until it should have crossed the street, and, for failure to do so, subjected it not only to a penalty, but to a liability for all damages which should “ be sustained by any person by reason of such neglect.” It would be a mere evasion to say that the duty could be avoided by detaching the engine while allowing the cars to run by power already communi coted by it.

Great as are the privileges of the defendant, it has no right to carry on its business in such a manner as is likely to injure others. That it did so on this occasion is legally and morally certain. A similar act has been characterized by this court as one of “gross and criminal negligence.” Brown v. N. Y. C. R. R., 32 N. Y., 597.

The first branch of the plaintiff’s case, therefore, was established in the most conclusive manner, and although the defendant, as we have seen, went into evidence, there was no pretense of the slightest caution in its conduct of the. affair, or of any exigency which compelled its omission. As the case stands the death of the intestate can hardly be regarded as accidental, but the inevitable and natural result of the defendant’s method of business. Can we, with like assurance, hold there was not evidence .upon which the triors of fact could fairly say' the deceased exercised that ordinary care and prudence which the law required from him under the conditions and circumstances in which he was placed? We have nothing from his mouth. We know of him, however, that he was in the prime of life; that he had a wife and three children, with whom he lived and for whom he cared; that he was steady, sober and industrious, serving in the same employment for twelve years and losing no day until this injury; and while neither these conditions nor the character of the man which they imply can take the place of that evidence of the exercise of due care which the law requires from one going into a place of peril, they are for the consideration of the jury and do add to the weight of testimony relating to his conduct and tending to show that he did not bring the misfortune upon himself.

What was his conduct? From the coal yard whence he ' started he could* plainly see so much of the railway as intersected the street; he could see east of the street; but no further to the west than the west side of Grotty’s store, thirty-one and a half feet from the place where he was struck. At that point, by directing his eyes upon a line exactly at right angles with the store, he could take in fifty-seven feet more. But there was then in view, and directly in his way, the six tracks of the defendant. The first and second tracks, so far as could be seen, were unoccupied; on the third track a number of empty coal dumps, or cars were moving from the west, and a long freight train, or “train of boxcars,” drawing out “under pretty good motion ” going west at the rate of five or six miles an hour, or, as one witness thinks, fifteen miles an hour, was-on the fourth track, making the usual noise of a train in motion; its bell also was ringing

All such things tend to attract the attention of a wayfarer, and the decedent, whose way the trains obstructed, might lawfully, as he would naturally, turn his thoughts to them. He was of course bound as he approached the defendant’s premises to observe every precaution to avoid danger which the law requires of a traveler at a railroad crossing. As to this, the law is not unreasonable. I am not aware of any rule which exacts from one approaching a crossing more than the exercise of ordinary prudence, nor of any exposition of that rule which reduces to a formula his way of procedure. The cases which call for its interpretation come before the courts with painful reiteration, but the answer is uniformly the same. Those cited by the learned counsel for the appellant form no exception. To recite them in detail would be useless, for the reason on which they turn is apparent upon the slightest inspection, and if there is a seeming conflict, it is because of the peculiar facts of the particular case, and not because there has been any departure from the principle which lies at the bottom of the rule above stated. All that the law requires is a reasonable use of the senses. According to the testimony, the intestate and his companion did not approach the railroad without looking and listening. As already suggested they could see nothing west of the crossing until they came within a short distance of the rail; by turning half way around they could command fifty-seven feet; as they proceeded and came within ten feet, they could see further. They did look. Phelps says: “As we approached the railroad I cast my eyes up as far as I could to the right to see by the Grotty block, and 1 saw nothing only the train going west. Asked: “W ere there any engines anywhere around;” he says, “I cast my eyes up the track by the corner, as we'went along and I was watching the trains on the third and fourth tracks.” As they get on the first track the cars ran down upon them. Asked by defendant’s counsel: “You were listening to the trains that were going to the west as you approached the tracks? A. One of them was going west and the dumps were going east.” Q. Were you listening to them? A. Yes, sir, and watching them. Asked if he noticed the bell on the west bound train, he says: “I did.” Asked if he heard it, he says: “I did. ’’Asked if he heard it, he says: “Yes.” Asked: “You were not aware there was an engine up towards Taylor street (this was west), before you were struck?” Answered: No, sir. Asked: “You were not listening for any engine up that way?” Answered: “As I was approaching the track I cast my eyes up that way. Q. Were you listening for any engine up that way? A. We were not expecting any engine or any cars from that way?” Q. “Your attention was not directed to the fact that there were cars coming down on that track? A. If it had been we shouldn’t have gone on the track; we had no warning of it; I did not hear the cars coming down. Q. When you got past Crotty’s building, did you look up to see whether there was an engine or train coining ? A. Yes, sir. Q. Was that as soon as you got by'this building ? A. It was between there and the track. Q. Can you tell where it was ? A. I had probably got half-way down. Q. You looked up and didn’t see anything, and then you began to look at the other trains to see when they got across so you could pass? A. Yes, sir. Q. Your attention was diverted by these trains until you were struck ? A. Yes. Q. You had got pretty near across the track when you were struck? A. Yes, sir. Q. You were thrown between the tracks and Woodard about the centre of the track? A. It appears about that way. Q. As you looked, these two cars were not in view? A. No, sir.

The Crotty store came up to within six feet of the north or first track, and until you passed that point you could see only fifty-seven feet of the track west. Snyder was on Loder street north of the railroad, opposite Crotty’s block, the street intersecting Canisteo street; he was on the comer. He saw the men and the box cars overtake them. He was facing west, wanting to cross, but waiting for the westbound train to pass. Bennett was on the south side of the railroad and on the east side of Canisteo street. He also was waiting for the west-bound train to pass, that he might cross. He saw Woodard and Phelps and says: “As they approached the track there was a freight train coming up under pretty good motion, and they looked across and there were some coal dumps.” Q. Before they were struck by the car, did you see whether they looked around or not? A. When they approached near the track they cast their eyes over, as I should judge from the appearance of the men turning their heads and eyes. Q. Which way? A. Both directions. Q. Which directions? A. East and west. Asked by defendant’s counsel: “ Was it before or after the west-bound train had passed Canisteo street that you saw Phelps and Woodard looking up and down?” and answers, “It was before.” Asked: “When you saw these gentlemen looking around they were pretty near the door of Crotty’s store, about opposite?” Answered: “When they were looking at- the cars they were down pretty near the track, past the corner of the building.”

The cross-examination was protracted, testing with much detail the memory, steadfastness and observation of the witness, and conducted, after the Socratic method, with questions leading to the desired result, but closing as follows: Q. You were looking out for that west bound train when you came up ? A. No, sir; I was watching the switch engine; as they cut the cars loose I saw them and this train come up. Q. And you saw these gentlemen looking around ? A. Yes, sir, Q. Did you see both their heads turn ? A. I think I did. Q. Do you know that they looked up at all ? A. All I judge from was from the motion of their heads and the appearance of the men; Morhess was standing on the east side of Canisteo street and the north side of Loder street; saw Phelps and Woodard going towards the railroad; they seemed, he says, to halt when they got to first track; then they moved on; when he first saw the box-cars they were coming in right from behind Grotty’s building; they were going without much noise; they were running quite fast; there was no man on the train, no one to stop it, and no flagman; he thinks Woodard looked to the right (the west), but is not clear; on cross-examination he could not say whether both looked to the right or not; Cook, a policeman on duty about three rods from the men, saw them approaching; saw the moving dump-cars, the moving box-cars and the train going to the west; as they stepped on the track they seemed to be observing the trains moving in front of them; I saw them, he says, moving across the track; they had nearly left the track when it (the box-car) struck them; it struck Phelps first; then Woodard; knocked Woodard in front of and under the cars and out of my vision; the ground, he says, was frozen and covered with snow; the box cars were very quiet; they were running very still; the cars were running with such velocity that Woodard’s body was moved by them thirty or forty feet; the train going west was making considerable noise; the rattling of the cars and the puffing of the engine; the dumps also were making more noise than the box-cars, and there were more dumps than box-cars. This witness also proved that the company had been in the habit of having “a flagman there all day;” at this time, however, the flagman was not there. This was well proven: That the flagman theretofore stationed at that point on the north side of the crossing was then absent, and on the other side of the six tracks, himself entirely out of sight from the north crossing; nor could he himself see anything of the accident. So he testifies. For any useful or available purpose he might have been altogether absent. So far as persons coming from the north were concerned, he was off duty or withdrawn. All these circumstances are to be considered in determining whether Woodard, by any omission on his part, contributed to the injury. He was familiar with the crossing, and charged with knowledge that the defendant had been (I use the language of one of the witnesses) “in the habit of having a flagman there all day.” The track had, indeed, been often used for switching, but there is no evidence that ever before cars had been shunted or kicked, or pushed, or discharged down what the defendant’s witness styles “a grade heavily descending east,” in the absence of the flagman, nor, but that on every other occasion, he was there to ward off the danger which might reasonably be anticipated by any intelligent person as likely to occur from such conduct on the defendant’s part.

His absence on this occasion was notice that nothing of the kind was to be attempted, and a wayfarer, familiar with the conditions theretofore observed by the defendant in the use of the crossing, might naturally conclude that no use of the south track was then intended, nor any car about to pass, but if danger lay in one direction, equal danger must be apprehended in the other. Then there were the two moving trains, either of which threatened danger and served to attract the attention of the intestate. And we have the fact, sworn to by more than one witness, that he did look and observe, and was alert in the use of his senses. Nothing more does the law require from one intending or about to enter upon a place of danger. Was it negligence not to have seen the car by which he was hit in time to have stopped? It not only gave him no warning of danger, but the flagman, usually in attendance, and whose known duty it was to guard the crossing and furnish notice to the traveler at this most dangerous place —dangerous only by reason of such act of the defendant as is now complained of-—was absent, and this absence was an affirmative assurance of safety. On the third track there was the train of coal or dump cars coming from the west, and from the east, the long train, -with its locomotives making the usual noise, while from the first track there was nothing to be heard, nor any notice of approaching danger. The sense of hearing and the sense of sight might-naturally be diverted by the objects before him, and his watchfulness affected by reliance upon the discharge by the-company ef its duty to run its trains over the crossing with the usual signal and under the observation of a flagman. It may be presumed that on other and previous occasions care had been taken, and that this care was known to the , decedent, so that as he may be chargeable with notice that the switch was used by the defendant, it was notice that the use was under safeguards and precautions upon the continued use of which he had the right to rely. Not only the evidence, to which I have referred, established that the decedent looked before entering upon the track, but the argument of the appellant concedes it. He claims only that he did not look at the right time, “did not look after he could have an unobstructed view of the cars,” that is, while passing over a space of ten feet. This was a question for the jury. The time and manner of observation at a place of danger, on the part of a prudent and careful man, would be regulated not alone by the .circumstances inwhícn.he found himself, but as that danger would depend upon the action of the defendant, his conduct would also be directed in the light of the experience he had of that action on similar occasions, and it should not be permitted to have an advantage of an omission on his part which its change of conduct produced.

The elaborate briefs of counsel on this appeal seem to show little uniformity in the decisions of courts upon the questions here involved. It is not likely that there will be, for facts vary and inferences which are natural in one instance, would appear to be unreasonable in another. Yet one rule of action' runs through them all—precautions by a corporation where circumstances make a street crossing a place of danger, and ordinary care on the part of a wayfarer lest he encounter it. Here on the part of the defendant there was literally no precaution, but an absolute and unexplained indifference to the life and safety of the citizen. On this part there was at least an apprehension of danger and attention to his conduct in respect to it. Whether it was sufficient could be determined only by the jury. The specific proposition submitted to the trial judge shows upon what a narrow point the defendant sought to take it from, them. The motion for a non-suit was on the broad and general ground that the “ proof did not show that the deceased was free from contributory negligence.” The request subsequently made assumes that the proof showed that while passing over “ ten feet ” to the tracks approaching cars could be seen, “that as he then had opportunity to see them he was bound to do so.” In other words the claim is that “the law assumes not only that he did see them, but saw them in time to save himself, and as he did not save himself, his death was the result of his own want of care, and so not the result of the defendant’s negligence.” The proposition is not sound. It excludes most of the. circumstances which make such a crossing dangerous, and the presence of which demand the attention of a prudent person. It excludes the conduct of the defendant and the condition of things caused by it. It disregards rules well settled in this state in regard to the relative duties of a traveler and a railroad company. The crossing was dangerous only when the defendant made it so by propelling its cars across the street. It was permitted to do so upon giving certain statutory signals. It not only omits to give those signals at its peril, but the omission of those or other customary signals is regarded as an assurance by the company to the traveler that no engine is approaching from either side within eighty rods of the crossing, and he may rely upon such assurance without incurring the imputation of negligence or breach of duty to a wrong doer.

A defendant, say the court, in the Ernst Case (35 N. Y., 39), “ cannot impute a want of vigilance to one injured by his act or negligence," if that very want of vigilance were the consequence of an omission of duty on the part of the defendant.” The jury might well find in words formulated in the case cited (supra), that the direct tendency of these omissions was to put the intestate off his guard, to disarm his vigilange and to produce a false sense of security.

It may indeed be that notwithstanding the omission of these signals and the absence of the flagman, he might by greater vigilance have discovered the approach of the c.ars, if he had foreseen a violation of the statute or the withdrawal of the customary guard, and whether in failing to do so he failed in' the observance of such a degree of care and diligence as men of ordinary prudence under similar circumstances usually employ was a question for the jury. He did look and listen. He did not go upon the track heedlessly. There were circumstances calculated to divert his attention from the first track, from which no danger was to be expected, to others which he had yet to cross, and it was impossible to say as a matter of law that he should have looked from some other point or in some other direction. Nor can it be said, as matter of law, that if he had looked at that other time, or from that other point, he could have seen the moving cars in time to escape. The law only declares that such a wayfarer must use his eyes and ears in view of all the facts and circumstances of the case as men of ordinary prudence placed in a similar situation would do, and the trial court did not err in submitting the case to the jury and leaving to them a consideration of all the facts likely to influence his conduct and so determine whether they were such as demanded his attention or as-distracted it. In Ernst v. Hudson River R. R. Co. (supra), those questions are discussed with great fullness and similar conclusions reached. They have been repeatedly applied by us to other cases referred to by the respondent’s counsel, and they need not be cited here.

But the general propositions which the appellant makes are both answered by the more recent case of Glushing v. Sharp, Receiver of R. R. Co. (96 N. Y., 676), where in an. action for injury, at a crossing the omission of signals and the action of the gate keeper were held conclusive as to the-negligence of the defendant, and the court says: “The evidence shows that no bell was rung or whistle blown and that the gate was raised, and thus the carelessness of the defendant was established. But the claim of the defendant' is that the plaintiff should have been nonsuited on account of his own carelessnes, and this claim he' bases upon these facts; that at the place where the plaintiff looked, about thirty feet from the railroad track, his view was somewhat obstructed and that he did not look again while passing the thirty feet, although during that space his view was unobstructed and he could have seen the train if he had looked. We thjnk the case as to plaintiff’s negligence was properly submitted to the jury. He looked both ways, and whether, under all the circumstances he should have looked again or continued to look, was for the jury to determine. The raising of the gate was a substantial assurance to him of safety, just as significant as if the gateman had beckoned to him or invited him to come on, and that any prudent man would not be influenced by it is against all human experience. The conduct of the gateman cannot be ignored in passing upon plaintiff’s conduct, and was properly to be considered by the jury with all other circumstances of the case.” These remarks have precise application here: the absence of the flagman, the absence of any signal, were assurance persuasive in like manner as the acts and omissions referred to in the case cited. .

So it was decided in the Greany Case (101 N. Y., 420), following the Glushing Case, and in Sherry v. N. Y. C. & H. R. R. R. Co. (104 N. Y., 652; 5 N. Y. State Rep., 574). In view of these decisions are the general and well settled rules of law which these cases only reproduce and illustrate. The trial judge committed no error in refusing to take the case from the jury and submitting it as he did under proper directions to them. Another tribunal whose duty it also was to examine the facts as well as the law has affirmed the decision made by the trial court. I find no ground on which the judgment of these courts should be reversed. It should, I think, be affirmed.

Ruger, Ch. J., and Andrews, J., concur with Danforth, J.

---

Lead Opinion

The action was brought to recover damages for injuries sustained, by reason of the defendant's negligence in the management of its train, at a place known as the Union Depot, in the city of Hartford. The plaintiff, as a passenger, was brought into the station over another line (the N.Y. N.E.R.R.), which, as well as the defendant, had the right to use and enjoy it for the receipt and delivery of passengers, and no claim is made that he was not lawfully there. Nor is it denied that he was hit and severely wounded by an incoming train of the defendant. His right hand was so crushed that amputation above the wrist was necessary, his skull and scalp severely injured, the scalp so cut and torn from the parietal bone, on the right side of the skull, that it was entirely bare. There was also a fracture at that point. On the right side of the back part of the head was a compound comminuted fracture of the skull, and there were also bruises on the face. Such were the injuries as described by the surgeon. A hand-bag, also, which the plaintiff was carrying in his right hand, was at the same time injured. As to these matters there was no controversy, and it stands as a fact in the case that each injury was upon the right side, and upon the upper part of the person, and none elsewhere.

The contention was against the plaintiff's claim as set forth in the complaint, and in proof of which evidence was given, viz.: That after disembarking from his train, and while standing upon the platform and preparing to leave, "he was run against and knocked off the platform, and run over "by the defendant's train coming from the south over a track laid just east, and outside of the platform. He had never before been in Hartford, and, as the complaint alleges and as he proved, "was totally ignorant that there was any such track," or of the approach of the defendant's train; and one point of his accusation was that no preliminary warning was given to him in that behalf; that it was dark; that the train came up unseen by him, without notice of its approach, by bell or whistle, or other signal, at an improper rate of speed, under the circumstances, and "greater than the law permitted; that on his part, he, with proper care was upon the platform in the course of exit from the station, to go to his destination in the city. At the close of the plaintiff's evidence, the learned counsel for the defendant moved for a dismissal of the complaint upon the ground, first, "that there is no evidence in the case of any negligence on the part of the defendant;" and, second, "that the plaintiff has not affirmatively proved himself free from fault." This being denied the defendant gave evidence tending to show diligence and care on its part, and as it claimed lack of care and prudence on the plaintiff's part, to the effect that the plaintiff left the platform, crossed this track, which lay to the east and got entirely over it, and then, turned and attempted to recross the track to the platform, and while so doing he was struck by some portion of the front part of the engine, and thrown up; that he fell between the train and the platform, and that the injuries which he sustained were received in this way.

The learned counsel for the defendant then repeated the motion above referred to; it was denied, and he moved the trial court to direct a verdict for the defendant. This, also, was denied. In submitting the case to the jury the learned trial judge presented the facts and the evidence at the foundation of the claims of the respective parties, and the principles of law applicable thereto, in a manner so comprehensive and fair that, so far as it concerned the conduct and duty of the respective parties, no exception was taken by either. The defendant's complaint is that he did not say more. Numerous requests were made by its counsel for instructions to the jury, and refused, but, of the exceptions then taken, only a few are now insisted upon. Other questions arise upon evidence. But the first and principal contention upon this appeal is, that the learned trial judge erred in not taking the facts away from the jury and declaring, as matter of law, that the plaintiff was not entitled to recover.

In an action for negligence the burden of proof is upon the plaintiff to show that the injury complained of was caused by the defendant, not in part, but solely, and so the courts hold that the person injured must not, by his own negligence, have contributed to the injury. What was the plaintiff's conduct at this time? He was brought into the depot by one of its owners; he was entitled to a safe passage out of it so that he could continue his journey to the place of destination, and he had a right to act upon the assumption that every necessary and reasonable precaution would be taken by its proprietors to make it so. He was discharged in the station and left to find his way out. The same roof covered the tracks and offices of the road he traveled and the tracks and offices of the defendant's road. The depot was built at one time and with reference to its being used by both companies; cross-walks were provided for the convenience of passengers arriving or leaving on either road, and passengers to and from the New England road were in the habit of crossing to the east side as the plaintiff did. He might alight from his train on either side, and from either side go directly from the enclosure. He was not told to go one way rather than the other; both were open to him; he saw no one to direct him and he followed a crowd of others, ten or fifteen in number, in the way they went. Neither way seemed appropriated to a particular road, and, in fact, it was not. The business part of Hartford was east of the depot, and so were the principal hotels and Main street. Cab stands were on each side, and whether the principal one was on the east side was in dispute. The plaintiff's intention was to go to the business part of the city, and he left the cars and crossed to the east platform to get a cab. Arriving at the platform he saw and heard cabmen standing some ten feet from the platform and calling aloud. He carried with him two valises, one a sample case, large and of considerable weight; this he placed near the outer edge of the platform, holding the other in his right hand. The rules of the depot prohibited cabmen from going on the platform. One approached and was engaged; he took up the large sample case, turned round and went toward his cab, leaving the plaintiff standing on the platform and facing the east. The cabman had but a few steps to go, and he placed the bag in his cab; "probably," he says, about a second elapsed between the time of the taking of the bag and placing it in his cab. As he opened the cab door and put it in he turned and the train went by him, over the narrow space he had just traversed, and between himself and the platform. The cabman had not before seen the train and did not know of its approach; he heard no bell or whistle; it was dark, slightly misty, not raining, "a kind of hazy evening." The cabman was familiar with the running of trains; for two years he had been in the habit of going to the same place, and, he says, "the train came in pretty fast, probably going, may be, ten or twelve miles an hour." He shut the carriage door, got on the box "and drove to the tail end of the train." "I went," he says, "to look for the gentleman;" he saw a crowd of people on the platform surrounding the body of the plaintiff. It appears that a track of the defendant ran on a curve along by the platform, its inner or west rail two feet or two feet six inches from the outside edge of the platform, and when the train had passed the body of the plaintiff was found lying in this space, injured in the manner above described. The evidence was positive, and came from both sides, that the cars of the defendant were so constructed that at this curve they overlapped the platform two or three inches and more according to the oscillations of the car. There was generally an oscillation both ways, a vibration moving backward and forward. In coming from the south, as was the train in question, the cars project over the platform the whole length of the curve, and that took in the platform from the end of the depot south, and included, as the evidence tended to show, the place of injury, the spot where the plaintiff was standing. His evidence is positive that he never left the platform of his own volition; that he was standing there when hurt. He did not see the train approach; heard no signal; did not even know or see there was a track for that train, but he was struck by it and wounded. Upon this evidence it cannot be doubted that his injury was the result of the negligence of the defendant. His story cannot be rejected as an improbable one. He was a stranger, on the spot for the first time; the night was dark, his attention drawn to the cabman and his destination. He had no reason to suppose the place was one of danger; it was outside the building; he saw no track; had just left the enclosed passenger station and did not anticipate the events which followed. He might instinctively regard a platform erected for passengers to be a safe and proper place for him. (Hazman v. Hoboken L. I. Co. 50 N.Y. 60.) The conduct of the cabman also furnishes strong corroboration of the plaintiff. He knew of the existence of the track and its use, but within a second before the train ran upon the plaintiff he was standing before him, ignorant of its coming, negotiating for a fare and knew nothing of the impending danger until it passed. So the position and character of the injuries favor the plaintiff's version of the transaction. All were on the side exposed to the approaching train, and were of a character to be accounted for by such collision and the place where he was found, between the inner rail and the platform. If this evidence be true, the jury were at least authorized to find that the injury was occasioned solely by the defendant's negligence. To bring, without notice, a train at such speed up to a station, into the neighborhood even of incoming or outgoing passengers, would seem inexcusable; but when the cars brought up are so constructed as to overlap some portion of the platform provided for those passengers, a delinquency on its part is established of such a character as to prove prima facie the whole issue. If those circumstances were truly stated, the defendant failed to do the thing which it should have done, and did that which it should not have done. It was guilty of negligence in respect of running its train; and in respect to the construction of its platform and its car it was an actual wrong-doer, and the result attributed to it of loss and damage to a person situated as the plaintiff lawfully was might reasonably have been expected. The trial judge, therefore, did not err when, with evidence of these things before him, he refused to dismiss the complaint, for if the plaintiff not only neither saw nor heard a moving train, but was even ignorant of a track provided for it, he could not be chargeable in law with negligence in assuming there was nothing to make his position dangerous.

The defendant's case presents a different theory. Its counsel argues that the plaintiff was careless in the manner of leaving the train by which he was brought into the depot, careless in going to and standing upon the platform; and more than that, if the extreme statements of the defendant's witnesses are to be credited, he was foolhardy and suicidal in leaving the platform in face of the approaching train, with its head-light blazing upon the track and its bell filling his ears with notice of danger. Nor can I say that there is no evidence from the defendant which, in some aspect, does not justify these inferences. It is at variance with that of the plaintiff, irreconcilably so. The defendant's witnesses are also at variance with each other, and their statements, as to certain material points, contradictory to the last degree. They agree, however, in this, that the head lamp was lighted, that the whistle sounded at the proper distance, and that on entering the station the bell was rung. The speed of the engine is put by them variously at four, five, six and eight miles an hour, as matter of opinion; but upon the main point raised by the defense, whether the plaintiff was on the track at the time of the injury, and not, as he claimed, on the platform, the difference between them is very great. The engineer of the train states that the head-lamp was lighted and so illuminated the track before it that if a man had been upon it he could have been seen at a distance of 300 feet. The engineer was on the right hand, that is, on the east side of the engine, looking ahead as he drew into the station, but did not see Mr. Archer that night. He saw no one in front of his engine, no one on the track, and knew nothing of the accident at the time it occurred. He was afterwards informed of it. The defendant's superintendent of motive power was at the station by the baggage-room; he heard the whistle and the bell. The engine was new, and he was watching its motion; "it labored exceedingly and moved very slowly coming into the station." While the train was in motion and had not wholly passed the plaintiff, the witness saw him lying on his back between the west rail and the platform, next to the platform, his head toward the south. He went to him; the train had not stopped; his hand was then on the rail; the wheel took off the little finger and the one next to it. The witness reached down and put his hand upon plaintiff's heart, "so as to keep him from injuring himself further."

So far, the evidence is not inconsistent with the plaintiff's case. It certainly has no tendency to show that he was not knocked off the platform by the overhanging car. He was not seen upon the track by the engineer, although the latter was in position to see him if there, and, in the performance of his duty, was intent on discovering intruders or other objects in his way. The master mechanic, in all probability, would have seen him if upon the track and in the way of the locomotive. He did not, but following the rush of people he found the plaintiff where he naturally would have been had he, at the very moment, been swept off. Even when the train stopped, one or more of the cars had not passed him. The fireman was on the left or west side of the cab, looking out of the window. He did not see Mr. Archer or know of the accident until after the train had stopped. Other evidence was from one Downs, a teamster. He was at the station and saw Mr. Archer before he was injured, standing on the platform and talking to a hackman. He heard the bargain made and at once stepped to the middle of the track, and from there to his horses, just outside the track. He did not see the plaintiff leave the platform, and next heard some one say a man was killed. This evidence also has some tendency to corroborate and strengthen the plaintiff's case, and, as the witness was near at hand, with his attention called to the train as it approached, presented the question whether, if the plaintiff had left the platform of his own will, he must not have seen him. Goff, a hackman, also called for the defendant, was on the east side of the east track, outside the depot, ten or twenty feet from the incoming train. He says: "I saw him (Archer) fall; my first impression was that he fell from the engine, and when he fell he fell between the west rail and the platform; he fell lengthwise, pretty close to the platform." Or, as he put it again: "When I first saw him he was falling alongside the engine, on the side next the platform." The evidence of what he saw might be regarded as consistent with a fall from the platform as from the engine. He says again: "The first sight I had of the man, to my remembrance, was seeing him fall." The remaining witnesses for the defendant, if believed, leave nothing to be inferred as to whether the plaintiff suffered from the negligence of the defendant or his own voluntary act. They testify that the plaintiff left the platform, crossed the track to the east, and, after some delay, undertook to recross the track to the platform, and in the middle of his course back, and while on the track, was struck by the engine and thrown into the place where he was soon found. There were, however, many discrepancies in their testimony, some circumstances affecting their credibility, others of contradiction, and, upon the whole, an account which a trial court was not bound to accept as absolutely true. It could not be reconciled with the plaintiff's testimony or that of his witnesses, or with that of the engineer. It might be thought wholly at variance with the circumstances or fixed facts concerning which there was no controversy. The interval between the plaintiff's arrival at the depot and the coming in of the train was brief; the object of the plaintiff was to leave; his cabman had been secured; and if it could be urged that he might cross the track on his way out, no reason is, or can be assigned from the evidence, why, if he was once over it, he should desire to return to the platform. According to the defendant's evidence, the plaintiff was struck while in the middle of the track by the cow-catcher with such force and so directly that, as one witness says "he was thrown up in the air six to eight feet, as high as the top of the boiler." If such evidence could be reconciled with that of the engineer for instance — who, although looking, saw no one upon the track — or that of the master mechanic — who watched the approaching engine with a maker's curiosity as it came from a point beyond the place of injury, and who must have seen the open track, but did not see the plaintiff, or with the condition of the body, which exhibited no wounds on the lower part of the person, or with the evidence of another witness of the defendant, its employe, who testified that he saw the plaintiff leave the platform, cross the track, and returning to the platform `place one foot upon it,' only to be struck by the end of the crossbar of the engine and `turned round' so that he went down between the wheels and the platform," and who being asked whether he "saw him caught by the cow-catcher and thrown in the air, answered `no sir; if he was be would be killed sure;'" the questions arising on this and other evidence were for the jury. It was their duty to balance the probabilities and determine which side had the preponderance. They were to determine the credibility of the witnesses and say which version should be taken. Neither side lacked apparent corroboration. The plaintiff's case, if unaffected by opposing circumstances and testimony, was made out. How far it was so affected was for the jury. The defense was not decisive. It rested wholly upon witnesses whose testimony was liable to be discredited, not only by inferences to be drawn from uncontroverted facts — and those inferences were for the jury to draw — but by circumstances in evidence which it was the province of the jury to weigh and determine, and also by contradictions and discrepancies in their own statements, which the jury alone could reconcile, choose from or reject, and in doing this, consider the bearing and deportment of the witnesses, from which important aid in arriving at the truth is not infrequently obtained.

Two juries have agreed; two General Terms have been asked to review the facts; the first granted a new trial only for misdirection by the trial judge, the second affirmed the judgment which followed the new trial and affirmed the order of the trial judge, which denied a third. It is not for this court to decide whether the evidence was weighed as it would weigh it, nor whether it would have reached the same conclusion as that expressed by the verdict. The court which heard it, and the court whose jurisdiction permits an inquiry upon the facts, are far better qualified to pass upon the credit and weight to be given to it than we could be. It is enough for us that there was sufficient evidence to present a case with two sides, and consequently sufficient for the jury to pass upon, and we see no reason to suppose they were not guided in their decision by a conscientious judgment and belief fairly formed in view of all the circumstances of the case. Nor do we find that the learned trial judge erred to the defendant's prejudice in the conduct of the trial. Exceptions were numerous, but those now insisted upon are few.

First. The injuries were inflicted by a company organized under the laws of Connecticut, and, therefore, subject to them. So much is admitted by the pleadings. In the course of the trial the plaintiff was permitted, against the exception of the defendant, to read in evidence portions of the statutes of that State, which relate to the running of railroad trains, stating at the time that he offered them as bearing upon the issue as to defendant's negligence. The objections were that, under the pleadings, the evidence was inadmissible, immaterial and irrelevant. The court, in its charge, made no allusion to those statutes, but defined the ground of defendant's liability, if any, and its duties in a manner satisfactory to the defendant's counsel, and was then asked by him to charge "that the jury, in considering the case, must not be influenced by section 73 of the Revised Statutes of Connecticut, which has been read in their hearing," and so in regard to sections 78 and 57. Section 73 related to the ringing of a bell on approaching a crossing and was proper and, in one view, important for consideration; the others related also to the running of trains, and, though less important, were not irrelevant upon the question of negligence. It is quite impossible the defendant could have been prejudiced even without the qualification made by the judge when requested by plaintiff's counsel to charge that "if the jury should find that there were switches south of the depot and south of Asylum street, and that by the laws of the State of Connecticut, section 78 of the Revised Statutes, a switchman was required to be stationed at night with a light at or near the switch, and the jury should further find that the absence of such switchman with a light contributed to the accident, then the defendants are guilty of negligence;" he said, "I decline to charge as requested, but I will submit to the jury the several facts set forth in the request for their consideration as to whether the company did exercise reasonable care and prudence in running the train." The point was presented in each instance whether the act or default of defendant contributed to the injury.

Second. The plaintiff offered in evidence a photograph representing, as he claimed, the locus in quo of the accident. The appellant alleges error in its admission. Upon the trial this occurred: The plaintiff, being on the witness stand, was asked to look at the photograph and "see if that describes fairly the locality?" Before answering he was questioned by defendant's counsel, and said: "This was not made by me; I don't know from what point it was taken; I don't know to what point, as a focus, this instrument was directed. (Objected to by defendant's counsel; objection overruled, and defendant's counsel excepted.) A. Yes, sir."

The proposition now submitted by the appellant to show error is, that "there was not sufficient proof of the point from, or the time at, which the photograph was taken to entitle it to be submitted to the jury as a picture of the premises as they existed at the time of the accident." The objection at the trial was a general one and within our decision in the Cowley Case (83 N.Y. 464, 476), unavailing. If a fair representation of the premises, it was admissible as an aid in the investigation, as much so as a map or other diagram, and served in like manner to explain or illustrate and apply testimony. Such drawings are uniformly received and are useful, if not indispensable, to enable courts and juries to comprehend readily the question in dispute as affected by evidence. (People v. Buddensieck,103 N.Y. 487, 501.) Of course, its value, like the value of other evidence, depends upon its accuracy. There was some evidence of this and the witness was not contradicted. No other exception appears to require notice and it only remains to affirm the judgment as one against which no error in law has been assigned. It is, therefore, affirmed.

All concur, except EARL, J., not voting.

Judgment affirmed.