143 N.Y.S. 176 | N.Y. App. Div. | 1913
Plaintiff’s intestate was found dead on the morning of November 22, 1910, a few feet from defendant’s track north of Felton street in the city of North Tonawanda, New York. It is claimed on the part of the plaintiff that her intestate came to her death by being struck by the north-bound flyer on the defendant’s road, which passed across Felton street, north bound, shortly before nine o’clock on the evening of November 21, 1910, and it is claimed that her death was caused by negligence on the part of the defendant company in driving its trains across said street at a high rate of speed and without giving proper signals, warning pedestrians on said street, and that the conditions were such that the plaintiff’s intestate was relieved from that degree of watchfulness which otherwise would have been required of her.
The physical surrounding's at the point in question aré as follows:
Felton street, at the point where it is claimed plaintiff’s intestate was killed, runs substantially in a northeasterly and southwesterly direction. Crossing said street near the point*16 where Mrs. Seeman’s body was found were five railroad tracks. Beginning with the easterly track, the first is a switch track operated by the defendant company in switching its cars. Next westerly is the main track of defendant, where it is claimed plaintiff’s intestate was killed. The distance between the westerly rail of the switch track and the easterly rail of defendant’s main track was eight and one-half feet. West of defendant’s main track, and substantially parallel thereto, runs one of the main tracks of the New York Central Railroad Company. The distance from the westerly rail of the defendant’s main track to the easterly rail of the New York Central track was fifty-six and one-half feet. Proceeding southwesterly along Felton street, there are two other New York Central tracks, each about ten feet distant from the other. Southwesterly of the third New York Central track, seventy-two feet therefrom and running substantially parallel therewith, is a highway running along the Niagara river, known as the River road. At the junction of Felton street and said River road there was concededly at the time of the accident an arc electric light burning, said light being placed in the River road at the end of the northerly sidewalk of Felton street. Upon the switch track of the defendant at the time of the accident, from Felton street southeasterly, were four or five empty coal cars extending from said street southeasterly upon said switch track. The decedent resided on the northerly side of Felton street from 450 to 500 feet northeasterly of defendant’s tracks. Felton street, at the point in question, runs through the lumber district of North Tonawanda and is unpaved, but has a sidewalk on each side of the street. It would appear that the street was not very frequently traveled, except during the busy hours of the day. For more than a year prior to decedent’s death the defendant had maintained a sign in a conspicuous place at said crossing to the effect that a flagman was not stationed at the crossing to warn pedestrians during the hours from seven o’clock in the evening to seven o’clock the following morning. There was no eye-witness of the accident, which it is claimed occurred to plaintiff’s intestate as before stated.
The evidence shows that shortly before eight o’clock on the evening before her remains were found Mrs. Seeman left her
The plaintiff also offers as a witness one Klinch, employed on the night of the accident as watchman in the lumber yard of White, Glratwick & Mitchell in the vicinity of this crossing. Klinch testifies as follows: “ That evening I saw her a little bit before nine o’clock; five minutes before nine or such a matter. * * * When I saw her I was just going to come down to pull the clock just before nine a little while. I saw her right at the end of Felton street; that is, at the point where Felton street runs into the River road, right at the foot of Felton street; that was west of everything. At the time I sax her there she was going across; she was just coming down there, and I met her there; she was on the west side of Felton street, that would be the side — of the River road; she was on the River road, on the sidewalk on the opposite side of the lumber yard. There is no sidewalk where the lumber yard is. At the time I saw her she was just coming along and I bade her good evening and went right along. She was west of Felton street * * * at the time.”
These witnesses, Wiederman and Klinch, are the only persons claiming to have seen plaintiff’s intestate at about the time she is claimed to have been struck. Wiederman further testified that he heard no whistle blown nor bell rung by defendant’s train as it crossed Felton street on the occasion in question. He testified that it was a quiet night, and that he could hear the whistle of the train, although he was not listening for it; that there was no reason why he should listen. He does state, however, that he took his attention off of Mrs. See-man before he actually saw the train, but afterwards testified that he watched her until she got to the dark spot cast by the locomotive of defendant’s train shutting off the rays of the arc lamp at the foot of Felton street. Wiederman also testified that the train, which was known as the “Nine O’clock Flyer,” was traveling at the rate of from thirty-five to fifty miles an hour as it crossed Felton street, and neither the engineer nor fireman contradicts his testimony in this regard.
It seems to me that the testimony offered in support of plain
But assuming that plaintiff’s intestate was struck by the defendant’s nine o’clock train crossing Felton street, I think the testimony fails to show that the defendant operated said train without due care or was in any manner negligent. As before stated, Felton street, at nine o’clock at night, was but little traveled. The record does not show that any order was ever made compelling the defendant company to maintain gates or flagmen at said crossing. It does, however, appear that for more than a year prior to the death of Mrs. Seeman the defend
Plaintiff seeks to show that defendant was negligent in operating its said train by omitting to blow a whistle or ring a bell or give other signal at said crossing. The only witness who testifies on that subject in behalf of plaintiff is the man Wiederman, who claims to have watched plaintiff’s intestate until she was lost in the shadow of the passing train. It must be remembered that Wiederman was about 600 feet east of the track. He merely testifies that as the train came along he heard no sounds or signals or any bell rung or whistle blown. He states that he was not exactly listening for trains, but that it was a quiet night and he could have heard the whistle if blown; that there was no reason why he should listen. He further testifies that his attention was drawn to the approaching train before he actually saw it. How then was his attention so directed, except by the sounding of some signal warning ? If it was alone the sound made by the approaching train that drew his attention 600 feet away from the crossing, how much plainer must have been that noise to plaintiff’s intestate who was within 20 feet of defendant’s track and within less than 100 feet of the approaching train. It is not at all strange that Wiederman did not recall having heard the whistle blown or bell rung. With the numerous tracks and frequent passing of trains across said street, it would be strange if the ringing of a bell or the blowing of a whistle would make an impression upon his mind.
But plaintiff also contends that defendant was negligent in permitting the coal cars, four or five in number, to stand upon its switch track parallel with its main track and eight and a half feet northeasterly therefrom. It is claimed on the part of the plaintiff that such coal cars obstructed the vision of Mrs. Seeman as she approached the crossing, and that the defendant was guilty of negligence in permitting said cars to stand upon said siding. I do not think that such claim has any merit whatever. The evidence shows that the cars in question were the ordinary coal cars and were only about half the height of the locomotive and passenger cars on defendant’s north-bound train. All of said coal cars stood on the southerly side of Felton street and plaintiff’s intestate was approaching the crossing on the northerly side of said street in a most favorable position to observe a train approaching from the south on the main track.
Wiederman testifies that earlier in the same evening he saw plaintiff’s intestate approach the crossing, he himself crossed and made certain observations. He said that in passing in a westerly direction as he came over to the side track and had reached the main track he looked in both directions to see if a train was coming. To the north, he testifies, the track was straight for about 1,000 feet—perhaps a quarter of a mile,
I do not think that the placing of the coal cars upon the side track south of Felton street was a negligent act on the part of the defendant.
But assuming that the plaintiff’s intestate met her death .by being struck by defendant’s north-bound nine o’clock train, as plaintiff contends, and assuming that the defendant was in some manner guilty of negligence, I. think the testimony in the case fails to show that plaintiff’s intestate at the time she was struck was observing that care which the law required of her in crossing said track. I find no evidence whatever in the case showing her freedom from contributory negligence. As she approached this crossing she was required to look and listen. There. is absolutely no evidence in the case that she did either. The locomotive headlight was burning and the passenger train was brilliantly lighted. For a considerable distance before she reached defendant’s main track, had she looked, notwithstanding the coal cars which plaintiff insists were a condition which would have "made an attempt to look on her part unavailing, she could have seen the approaching train and waited for it to pass before attempting to cross the track. In fact no circumstance appears tending to show that decedent looked or listened or exercised any care whatever in crossing defendant’s track. Wiederman does not attempt to testify that she stopped, looked or listened. The coal cars did not cut off her vision because they were only half as high as the locomotive headlight, which was placed upon the boiler, and the lighted passenger
In the Lamb case, above cited, the decedent was run over and killed by one of defendant’s trolley cars. In that case the night was dark and foggy and the case otherwise presented much stronger circumstances in favor of the plaintiff’s contention than the case at bar. The Court of Appeals in that case held that the facts did not admit of the necessary inferences to find the intestate free from contributory negligence. And the court there held that the circumstances pointed quite as much to the lack of reasonable care or even to the possibility of suicide as to the exercise of reasonable care and caution on the intestate’s part, and nonsuit should be granted.
As before stated, Mrs. Seeman, on the night in question, was more or less under the influence of intoxicating liquors, and it is probable that she waited within its shadow for the passing of defendant’s flyer; that she then proceeded easterly and was seen by the witness Klinch on the River road. Frequent trains were passing on the several railroad tracks in the vicinity during the night, and it is entirely probable that decedent was struck by some other train during her wanderings. Both the engineer and fireman testify to their absence of knowledge of the alleged accident, nor were there any marks or indication upon the locomotive of its having struck anything on its trip.
It seems to me . that the learned trial court should have granted defendant’s motion for nonsuit made at the close of the evidence in the case, and that in rendering its verdict the
The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide event.
All concurred, Kruse, P. J., and Robson, J., in result only, upon the last ground stated in the opinion.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.