
    Clara Young, as Administratrix, etc., of Minnie Seeman, Deceased, Respondent, v. Erie Railroad Company, Appellant.
    Fourth Department,
    July 8, 1913.
    Railroad—death of pedestrian struck by train while crossing track — evidence — negligence — contributory negligence.
    Plaintiff in an action to recover for the death of her intestate, found dead on the morning after the accident a few feet from defendant’s track, ■ where it crossed a city street, claimed that the decedent was struck and killed, by the defendant’s train which passed across the street in question about nine o’clock on the previous evening, and that the defendant was negligent in driving its train across said street at a high rate of speed and without giving proper signals and that the position of freight ears near the crossing obstructed the view.
    Evidence examined, and held, insufficient to establish the negligence of the defendant upon any of the grounds claimed atid insufficient to show the freedom of plaintiff’s intestate from contributory negligence.
    Kruse, P. J., and Robson, J., dissented in part.
    Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29th day of January, 1913, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial.
    
      Moot, Sprague, Brownell & Marcy [John W. Ryan of counsel], for the appellant.
    
      Eugene L. Falk [E. C. Schlenker of counsel], for the respondent.
   Merrell, J. :

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 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 home, and it fairly appeared from the evidence that at that time she was somewhat under the influence of intoxicating liquors. She first crossed the street and remained at the boiler-house of a planing mill nearby and at the residence of a nearby neighbor for half or three-quarters of an hour. A few minutes later one George Wiederman, a son of the owner of the planing mill, who testified that he was standing near the south sidewalk on Felton street at a distance of 550 to 600 feet northeasterly of defendant’s tracks, claims to have seen Mrs. See-man leave her own house on the northerly side of the street and to proceed in a southwesterly direction towards the defendant’s tracks. Wiederman testified that it was a pretty nice, fair night, and was light enough so that he could see plaintiff’s intestate proceeding along the northerly side of the street toward the defendant’s tracks. It is entirely upon the testimony of the witness Wiederman that the plaintiff seeks to recover against the defendant, and insists that the verdict of the jury should not be disturbed. He testified that he continued to watch decedent as she approached the defendant’s tracks, and that he was able correctly to estimate that when he last saw her she was at a point 20 feet northeasterly from defendant’s main track. He says that he watched her until she was obscured by the shadow cast by the flyer passing northwesterly along defendant’s main track as it crossed Felton street, thus obscuring the rays of the arc light at the junction of Felton street and the River road before referred to. The witness seems positive as to the distance which Mrs. Seeman was.from the main track at the time when his vision of her was cut off by the shadow of defendant’s locomotive and train. He testified: “As soon as she got at that spot about 20 foot from the crossing she was 20 foot and as I looked up she started to walk and this train approached across and it stopped the view of the light at the end of the street. The train approaching across the street stopped the view; so that when Mrs. Seeman was about 20 feet (west) of the main track the engine went across the street and obstructed the view of the light from this light in the River Road.” And still further: “I followed Mrs. Seeman with my eye until she was cast in the shadow of the train. * * * The train came here. * * * And as she was wálking along this train came along and threw the reflection off of this light and I saw her no more.”

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 plaintiff’s contention that the plaintiff’s intestate came to her death at the time mentioned by being struck by defendant’s train falls far short of establishing a prima facie case of defendant’s negligence. If the testimony of Wiederman is to be given any credence whatever, it would be a physical impossibility for Mrs. Seeman to have been struck by said train. From the point where Wiederman stood, and where he is positive he followed with his eye the plaintiff’s intestate as she approached the track to a point twenty feet northeasterly thereof, where she was lost to view by the train casting a shadow from the arc light, it would be impossible for her to have covered the twenty feet between the point where he last saw her and the defendant’s track in time to have gotten upon the track ahead of defendant’s train. At the rate stated, thirty-five to fifty miles an hour, it would have required only a small fraction of a second for the locomotive to have traversed the short distance where it must have been at the time its shadow obscured Mrs. Seeman to the place where it crossed the sidewalk upon which she was walking. Felton street is fifty feet in width at that place, and assuming that the train was traveling as slow as "thirty miles an hour it would have required only about one second to have crossed the street from its southerly to its northerly side. It, therefore, seems to me a physical impossibility for plaintiff’s intestate to have gotten in front of defendant’s locomotive, if the testimony of plaintiff’s sole witness, who claims to have seen her immediately before the accident, is to be believed. Then the testimony of Klinch, who testifies that he saw plaintiff’s intestate about five minutes before nine on the River road westerly of all of the tracks in that vicinity, would seem to negative the possibility that she came to her death in the manner claimed.

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 defendant company had maintained a flagman at said crossing to warn the public of approaching trains, but that said flagman’s hours were confined to the day, and that from seven o’clock at night until seven o’clock the next morning no flagman had been stationed at the crossing. Plaintiff’s intestate was entirely familiar with that condition. She lived but a few hundred feet from the crossing and was in the habit of crossing defendant’s tracks several times each week. IN"or does it appear that there was any restriction by way of ordinance of the municipality as to the rate of speed of defendant’s trains. It was not negligence, therefore, on defendant’s part to operate its train at a speed of from thirty-five to fifty miles an hour so long as it gave proper signals of its approach to said crossing. (Phelps v. Erie Railroad Company, 134 App. Div. 729.)

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.

As against the negative evidence of Wiederman we have the positive testimony of the engineer and fireman upon the passenger train that the whistle was blown at said crossing and that the engine bell, an automatic contrivance, was ringing constantly from the time the train left Buffalo until it reached its destination at Niagara Falls, on the Ontario side. It seems to me that something more is required to discredit the positive testimony of the engineer and fireman on the giving of the signals than the mere negative evidence of Wiederman that he did not hear them. I do not think that the testimony of Wiederman that he heard no signals contradicted by the positive affirmative evidence of the engineer and fireman was sufficient to authorize the submission of the question of defendant’s negligence to the jury by reason of failure to sound proper signals. (Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133; Foley v. N. Y. C. & H. R. R. R. Co., 197 id. 430.)

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, and that to the south he could see about a mile toward Tonawanda station. At the time Wiederman made said observations he was walking on the southerly side of Felton street, a much less favorable position to observe defendant’s main track than that occupied by Mrs. Seeman as she approached said track. Wiederman testifies that even on the south side, and when he was at a point seven feet east of the main track, he could have seen a north-bound train approaching along the main track for more than a mile before it reached Felton street. Wiederman testifies that the defendant’s train as it passed the crossing was brilliantly lighted, and the testimony of the engineer and fireman to the effect that the headlight on the engine was burning is not contradicted.

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 coaches. Under these circumstances it would seem idle to claim that had plaintiff’s intestate looked she would not have been able to see the approaching train. No other obstruction, except said coal cars, is mentioned. And if the witness Wiederman could hear the approaching train 600 feet away, in how much better position was decedent to hear said train when near the crossing. The record is barren of any evidence showing that decedent exercised any care whatever in attempting to cross defendant’s track, nor does it disclose any condition which would have rendered the use of decedent’s senses of sight and hearing unavailing. Without such proof plaintiff’s case must fail. (Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 420; Wieland v. Delaware & Hudson Canal Co., 167 id. 19; Lamb v. Union Railway Co., 195 id. 260.)

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 jury was permitted to guess and speculate on every essential element in the case. The learned trial court erred in refusing to grant defendant’s motion to set aside the verdict rendered.

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.  