
    Maggie Clark, as Administratrix, Plaintiff, v. The New York Central & Hudson River Railroad Co., Defendant.
    (Supreme Court, Montgomery Trial Term,
    May, 1896.)
    1. Railroads — ¡Negligence — Weight of evidence as to signals.
    Testimony of witnesses whose attention is not shown to have been specially called to the fact that they did not hear the usual signals is not sufficient to overcome'the positive testimony of the trainmen and others that they were given, especially when it was necessary for the train to pass a group of laborers at work upon the track, and, therefore, to warn them of its approach.
    Motion for a new trial, on the ground that the verdict is against the weight of the evidence.
    L. P. Pish and H. V. Borst, for plaintiff.
    J. D. Wendell, for defendant.
   Russell, J.

The'plaintiff recovered a verdict of $2,580 for the negligent killing of. her deceased husband. The defendant moves to set aside this verdict, on the ground that it is against the weight of the evidence, amongst the other reasons urged for a new trial. The ground of negligence charged, was the absence of proper warning of the approaching train which killed the intestate. The intestate was proceeding to cross the track from the south. The train came from the east on the third, or farthest track from the intestate’s point of entrance upon the railroad. The jury had a right to find that on the first track, which' was- a switch track, cars stood at the right and left of the passageway,- which partially hid the approach of a train, but the other two tracks were clear of standing cars, and about twenty feet intervened from the point of clear vision, both ways, before the horse could reach the track on which, the engine struck him. The horse was proceeding upon a walk.

Hnder the evidence, the jury had a fair right to -find, if that evidence satisfied their minds, a verdict of negligence against the defendant, if proper signals'were not given to warn approaching travelers over the passageway. Was the evidence offered by the plaintiff sufficient to justify a jury, acting within their undoubted province of determination, to find that signals were not given?

The evidence on behalf of the plaintiff consisted of the testimony of nine witnesses, who were variously occupied at points .adjacent to the Scene of the accident, and who testified that they did not hear the. bell ring or the whistle of the locomotive while it was approaching the crossing. None of these witnesses had any special or peculiar reason for so noticing the absence of the sound of the whistle or the bell at the time the train was approaching, for nothing indicated, up to the time the bell should have rung or the whistle sounded, that an accident was' likely to occur, and there was no reason assigned why they should notice this absence of sound, any more than that of any of the other fifty or sixty trains passing that day, or such of them as they were in position to hear. In hearing the testimony it seemed to the trial judge as though the statements given by the witnesses, under oath, as- to their recollection of what did or did not occur, was rather of the character of a want of conscious perception of the absence of the sound, than that of any affirmative statement coming from an intelligent notice that there was no sound of bell or whistle.-

For the defendant, the foreman of a gang of laborers, at work on the track, five to six hundred feet from the crossing, the conductor of the train, the engineer, the 'fireman, a flagman on the train, a trainman and a brakeman, each distinctly testify to "the ringing of the bell and the blowing of the whistle, and, in addition, a blacksmith working adjacent to the track, not connected with the railroad company, also testified to hearing the whistle.

Aside from' this affirmative testimony,, which -was strengthened •to some extent by a reason for recollecting- on the part of some of the defendant’s witnesses, furnished by the presence of the group of laborers at work on the very track on which the train- had to approach the crossing, is the almost conclusive presumption afforded by that very fact of the laborers at work upon the track. To reach the crossing where the intestate was killed, from the point 'where the whistle should blow and the bell should ring, it was necessary to pass that very group, and a signal-given to warn them wouldj undoubtedly, be a signal to those on the. crossing itself. This group of laborers was in plain sight for one-half a mile or more; they were busily engaged in their occupation upon the track; their foreman was warned, -as he testifies, by the sound of the-bell and the whistle, and-it is incredible that, on a bright afternoon in May, a locomotive engineer, or a fireman, would fail to warn laborers, busy upon the track over .which the train must pass, of that approaching train so that they might clear the track in time: and not carelessly stand upon it or too near it for safety. The danger was so obvious to those in charge of the train that it would have been inhuman to have neglected the warning. The testimony of the foreman in charge of the Italian laborers, of the railroad employees, and of the blacksmith is so thoroughly in harmony with the natural and almost certain action of men under similar circumstances, that, in the view of this court, a jury had no right to throw aside this affirmative testimony, and these strong' presumptions, upon any plea that railroad servants will testify to anything in the interest of the corporation for fear of consequences, and uphold the negative testimony of those who did not hear, or were' unconscious at the time of hearing, as overpowering the other class of evidence sufficiently well to produce a verdict for the plaintiff.

The verdict, therefore, will be set aside as against the weight of the evidence.

Motion granted.  