
    Katie Cook, Adm’rx, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 4, 1891.)
    
    ¡Railro ads— Negligence.
    At St. Joknsville the New York Central and the West Shore railroad tracks are on opposite sides of 1he Mohawk river and distant about an eighth of a mile. The accident in question happened on the West Shore road, which runs east and west, and has two tracks, the north track being for west hound trains. The deceased was approaching from a highway which comes in from the southwest at an obtuse angle, and was struck by a west bound train running at a high speed. He was driving very slowly. There were points at which he could have seen the train at a considerable distance, but the train was not near enough for him to see it when at those points. His general view as he got within 200 feet of the tracks' and from there on was much obstructed. It was difficult to tell by sound alone whether an approaching train was upon the New York Central or upon the West Shore. There was evidence that the statutory signals were not given at all, and it was certain that they were not given at eighty rods distance. Held, that it was a proper ‘case for a jury, and that a verdict for plaintiff Would not be disturbed.
    Appeal from a judgment in favor of plaintiff entered on verdict, and from an order denying a new trial. t
    
      Ashbel Green (J. D, Wendell, of counsel), for app’lt; George S. Klock, for resp’t
   Learned, P. J.

This is an appeal by the defendant from a judgment entered on a verdict in favor of plaintiff and from an order denying a new trial. The action was brought to recover damages for the killing of plaintiff’s intestate and husband as he was crossing the track of defendant on what is called Cox’ highway. The deceased was driving a horse and wagon northerly along this highway and was struck by the engine of a freight train going westerly on the north' track of the West Shore Railroad. The plaintiff claims that the train was running about thirty-five miles an hour; that the whistle was not blown or the bell rung at the proper distance; and that there were obstructions which hid the train from the deceased. The defendant insists that the whistle was blown and the bell rung and that the deceased might have seen the train if he had looked.

The case was submitted to the jury with great accuracy and clearness. A single exception was taken which was not urged in the appeal, and the requests of defendant were charged by the court. The questions here presented are those which are continually brought up .in such cases; whether the plaintiff should not have been nonsuited and whether the verdict should not be set aside as against the evidence.

The rules of law applicable are well settled and have been repeated hundreds of times, to the great waste of printer’s ink. And the only point to be decided in such a case as the present is whether the evidence justified the jury in their finding. A full discussion of that seems almost to require á statement at length of the whole of the testimony.

Courts have been so much disposed to assume that juries are prejudiced against, corporations in such actions as the present, that they have often taken it on themselves to determine whether the fact of negligence of each of the parties was shown by the circumstances.

The Cox highway approaches the crossing from the southwest at an obtuse angle; for several hundred feet descending at ten feet in 100; and within about nine feet of the south track substantially level. The Sanders’ road comes from the east and enters the Cox highway south of and close to the railroad crossing. A short distance to the east of the crossing and between the tracks and the Sanders’ road is the passenger station. Farther east are the tool house and shed.

About 550 feet east of the crossing the tracks begin to curve southward; at 637 feet they curve more rapidly and about 987 feet are out of sight. There was a lumber pile in the angle formed by the Cox highway and the Sanders’ road, which came up to the Cox highway. On the east side of the highway there was a bluff or ridge of hills, which had been cut away for the railroad. The appearance and situation are better understood from the photograph used on the trial than from mere description. There is a watering trough on the west side, of the Cox highway, often mentioned in the case, and opposite it on the east side five barns and buildings of Mr. Place. There was a vacant lot overgrown lying east of the depot.

To understand the relative positions of the train and of the wagon of the deceased we must notice that the testimony shows that the train was running some 30 miles per hour and the deceased was driving on a slow trot which a witness called two miles per hour. It was probably rather more, as the road was descending. Assuming that the whistle was blown when the train was on the curve, this would be at a place about 900 feet, east of the crossing, and therefore one-third of a minute before the accident. The deceased at that time would have been from sixty to ninety feet away from the crossing. Deceased would have been at the watering trough about a minute or a minute .and a quarter before he was struck. The train was then about from 2640 to 3300 feet from the crossing; some 3000 feet beyond the point where it was out of sight. It is very important to keep these relative positions in mind. For although there were places on the Cox road between the trough and the crossing where the track eastward could be seen, as witnesses testify ; yet, it will be found that owing to the slow movement of deceased and the rapid approach of the train, the train may have never been actually in sight of the deceased until just before the accident. Thus the defendant urges that a person at the watering trough could see a train as it rounded the curve. But when deceased was at the watering trough the train had not yet rounded the curve, but was far east of that place. And as the deceased drove along he passed over that part of the Cox highway from which the track was visible and came to a part where the view was obstructed. Unless we keep the movement of both parties in mind we shall fail to understand the facts of the case. Thus the train was first in sight from the crossing when about 1,000 feet •east, or one-fifth of a mile distant, and at say one-third of a minute prior to the collision, when deceased was some sixty to ninety feet from the crossing where he could see only a small part of the track, on account of the obstruction of the depot. Of course the foregoing statements as to the relative positions are not to be taken as absolutely correct, because the speed neither of the defendant nor ■of the train is known with certainty. They are intended to show that an unobstructed view of the track from a certain point in the highway was of no avail to the deceased unless he was at that part of the highway when the train was on that part of the track. And it seems, as far as we can judge, that in fact the obstructions concealed the train from him until he was close upon the place of danger. Certainly the jury were justified in coming to such a conclusion.

It is further to be noticed that there is evidence that on the day of the accident there was a pile of lumber running some fifteen feet north from the wagon house to the pile now shown in the photograph, which obstructed the view between the Place barns and the depot. And, further, that when a train was coming from the east it was difficult for a person on the Cox highway to determine by the sound whether the train was on the West Shore or on the Central. This is a circumstance to be taken into account in considering the question of the deceased’s negligence. If the noise of the train seemed to come from the Central railroad tracks the deceased would not have had his attention called to the West Shore road.

Whether the bell was rung or the whistle blown was a question of fact. There was conflicting evidence whether the bell was ringing at the time of the accident: and this was for the jury to decide. .And as to the time at which these signals were first given, the defendant’s brakeman, who was on the engine, says, two long and two short whistles were .blown just on the curve, and then he began ringing the bell. The fireman gives the same time for the blowing the whistle; and the conductor also, and other employes. The engineer says it was just before he rounded the curve in sight of the station. The distance of the curve from the crossing has been "above stated. Hence it appears that the-signals were not given at the required distance of eighty rods.

Some evidence as to the possibility that the deceased saw the train in time to escape the danger may be derived from the testimony of the defendant’s employes on the train in respect to the time when they saw the deceásed. One says the horse was on the south rail of the south track; another that he was thirty feet from that track; another two rods. They say that the engine was then at a point about 260 feet east of the crossing. This, then was the place where the employes first discovered the deceased ; and they were looking in his direction. It took only six seconds for the train to pass that distance, running at thirty miles an hour. If the deceased was driving three miles an hour he would have gone about twenty-five feet in that time. He must, then, have been quite close on the south track when he was first, seen. If the three or four employes of the defendant on and about the engine, looking along the track, did not discover him until he was so near to the point of actual collision, this is some evidence of the time when he could first have seen the train after-passing the obstruction of the defendant and other interfering objects. He was then close upon the point of danger, only the distance between the two tracks therefrom. Whether he could stop suddenly enough to avoid the danger or could push on and get beyond it was a question to be decided on the moment. He-should not he held negligent for an error, if it was an error, of judgment under those circumstances.

It is easy for a court sitting at ease and reading over the printed pages of a case to say that one in the situation of the deceased ought to have done this, that, or the other; ought to have looked towards the four points of the compass; ought to have listened to all the sounds which might come from any direction; that if he heard or saw a train he should have stopped; that if he did not see or hear it, then he ought to have seen or heard it, but the actual experience of the traveler is a different matter.

On an examination of the case we think that the evidence was such that it was for the jury to decide whether the defendant was negligent and also whether the deceased was guilty of contributory negligence.

Judgment and order affirmed, with costs.

Mayham, J., concurs.  