
    Philip Nolan, Respondent, v. The New York Central & Hudson River R. R. Co., Appellant.
    (Supreme Court, Appellate Term,
    June, 1897.)
    Negligence — Railroads.
    Evidence that an owner and driver of a truck was stopped at a street crossing and upon the tracks of a railroad company, because of the congestion of traffic upon the westerly side of a street; that a space, which was clear when he started to cross, became blocked by trucks while he-was proceeding, that, when he had reached the most westerly of the defendant’s tracks and had come to a stop upon it, a dummy train of the defendant was a block away; that his predicament might easily have been seen by its engineer; that a boy on horseback who rode about a block ahead of the train and waved a red flag “ dodged around ” the front of the truck as it stood on the track; that the train continued to proceed at a rapid rate and collided with the truck, is proof sufficient to show that the railroad company was negligent in the matter.
    
      Appeal from judgment rendered by the justice of the First Judicial District ■ Court in favor of the plaintiff.
    Action for negligent injury to personal property.
    Henry B. Dwyer, for appellant.
    Charles I. McBurney, for respondent.
   Bischoff, J.

The plaintiff sued for damages represented by an expense incurred for necessary repairs to his truck which was injured throitgh a collision with a “dummy” engine, operated by .the defendant on Hudson street upon tracks laid in the center of the highway.

From the plaintiff’s testimony it appeared that he attempted to cross Hudson street,, at its intersection with Laight street pro- . ceeding westerly, but was compelled to come to a stop upon the defendant’s tracks because of the congestion of traffic upon the westerly side of Hudson street, a space which was-clear when he started to cross having become blocked by trucks while he was proceeding.

When he had reached the westerly truck and had- come to a stop upon it the “ dummy ” train was a block away .and his predicament was obvious to the engineer, or should have been, since , there was nothing to obstruct the view along the track,' but the train proceeded at a rapid rate and, without slackening its speed, the engine-collided with the truck.'

A boy on horseback preceded the train, riding about a block ahead of it and waiving a red flag, and the plaintiff -testified that , this boy “ dodged around ”' the front of the truck while it was. standing upon the track of the approaching train; further he 'testified that he first saw the boy when the latter was about, one-third of the way up the block and knew of the approach of the train when he first attempted to cross the street, but expected to drive through the opening in. the line of' trucks upon the opposite side and could readily have done so before the train reached the place, had this opening remained.

In his account of the circumstances the plaintiff was substantially" corroborated by a totally, disinterested, witness, á by-stahder at the time of the collision, and upon the facts thus detailed there can be no doubt that the justice was well authorized to find that the defendant’s negligence, in the absence of negligence upon the plaintiff’s part, was the efficient cause of the accident.

The plaintiff’s attempt to cross the street could be taken as justified by the surrounding circumstances, the train not being a thing of danger at the time, and his stopping upon the track was called for by circumstances for which he was not responsible.

On the other hand the engineer of this train had ample time in which to bring it to a stop, after the plaintiff’s situation became obvious, that is unless "the train was proceeding at a rate evidencing a total disregard of duty to others upon the part of the defendant’s servants.

This was not the" case of an attempted crossing of tracks upon which trains might be expected to run at a high rate of speed, with an attendant duty upon the wayfarer’s part to seek and observe all signs of approaching danger. This train was being operated upon the public street and it was for the defendant to manage it with a due observance of the rights of persons lawfully using the highway; it cannot be held that the defendant’s duty was observed in this case where the train was propelled along this street without an attempt to avoid a collision with any person who, under whatever circumstances, failed to leave the track at the approach of the warning horseman.

The version of the accident as given by the defendant’s witnesses, all employees of the defendant, was totally different, and if credited, would have shown the plaintiff to have been not only wantonly reckless, but, indeed, mentally deficient.

According to these witnesses the train and the truck were both caused to come to a stop by the “ dummy boy’s ” signal before the plaintiff had'reached the track at all; that the “ dummy boy then signaled the train to proceed, which signal cwas obeyed, but when the train had come to within ten feet of the plaintiff the latter suddenly started forward in an attempt to pass over the track and the collision was unavoidable. One of these witnesses, the “ dummy boy ” himself, testified that the engine was within five feet of the truck when this sudden attempt was made and that such attempt was impossible of success, a proposition which no one would undertake to dispute.

The account thus given seems almost incredible and is directly contradicted by the plaintiff’s witness Eowland who, upon rebuttal, testified positively that the train did not come to a stop but was, on the contrary, proceeding continuously at an unusual speed.

We can have no hesitation in holding that the justice properly accepted the plaintiff’s evidence, corroborated as it was by Eowland’s disinterested testimony, rather than the unsatisfactory version of the matter given by the interested witnesses for the defense. Judgment affirmed, with costs.

.MoAdam, J., concurs.

Judgment affirmed; with costs.'  