
    Fred. Manley, Plaintiff, v. New York Central & Hudson River Railroad Co., Defendant.
    (Supreme Court, Niagara Special Term,
    November, 1896.)
    1. Negligence — Contributory.
    Plaintiff, upon approaching a railroad crossing, stopped to look and listen at a point where the track was visible to the' west about 105 feet. He saw the flagman enter his shanty, and then looked to the west 'and saw no train in that direction; then looked, to the east and stepped upon the track to cross, when a train from the west bore down upon him so rapidly that he was unable to escape injury. Held, that a finding that he was free from contributory negligence was justified.
    
      2. Same — Contributory.
    When, so far as a pedestrian knows, a train is as likely to come upon him from one direction as another, the courts cannot adjudge him guilty of negligence for failing to look in a particular direction at a particular moment.
    Motion at Special Term for new trial on a case.
    The action was tried before Justice Ward with a jury at the Niagara Circuit, in September, 1894, and plaintiff recovered a verdict of $9,000.
    
      Patrick F. King, for plaintiff.
    Charles A. Pooley, for defendant.
   Laughlin, J.

Eighth street is a public highway, running north and south in the city of Niagara Falls. A switch track, used very little and owned by defendant, crosses the street at grade and nearly at right angles. Thirty or forty feet to the south, two- main tracks of defendant’s road also cross Eighth street, or a continuation thereof known as Quay street, at grade. Fifty feet west of the-street the switch track passes through an overhead iron truss bridge 110 feet-in length, which spans the hydraulic canal. Large quantities of rock excavated in widening this canal had been piled upon either side of and in Eighth street north of the switch track, leaving only a narrowpassage for public travel, and extending on the westerly side of the street to within about two feet of the railroad ties and rising perpendicularly to a height of about seven feet close to the line of travel in Eighth street. The plaintiff was a stationary engineer and was familiar with the crossing. He was walking along Eighth street on his way to work, approaching the crossing from the north, between five and six o’clock in the evening on June 5, 1893. When he reached a point three feet from the north rail of the switch where the stone piles no longer obstructed his view, he stopped .to look and listen. He saw the flagman, who had for a long time been stationed at the crossing by the defendant, returning to his shanty, after flagging a freight train which had just passed to the east over one of the main tracks. Some steam-drills and a stone-crushing machine working in the immediate vicinity made considerable noise. The plaintiff, while standing there, listened for a train and looked toward the west. At first his view was obstructed by smoke from the freight train and perhaps from the stationary engines. The track curved two feet to the north between the bridge and the street. The evidence warranted the jury in finding that the side trusses of the bridge would then prevent his seeing the track more than half way to the bridge, or 105 feet. He contradicts'himself on the question as to whether the smoke still obstructed his view to the west when he ceased to look in that direction; but he testifies positively that the train was not then between him and the middle of the bridge, and I think the jury was at liberty to find that he waited until the smoke cleared away, or at least that it was not so dense as to prevent his seeing an, approaching train. He then turned his eyes to the east, where his view was also somewhat obscured by smoke, and started across the track. After stepping over the first rail, he heard a rumbling noise, and, looking to the west, saw the train within six or twelve feet bearing down upon him. He jumped backwards,, but the tender of the engine, which was backing, hauling six or seven freight cars, struck his shoulder and threw him to' the ground several feet to the east, and his right foot was crushed by the wheels of the tender and engine. The plaintiff presented other evidence that no signals were given from the' train or by the flagman, and that the train was running at the rate -of from fifteen to twenty-five miles an hour.

"Under all of the evidence, in view of the location and surroundings, the jury was justified in finding that the plaintiff was free from contributory negligence. He had a right to rely to some extent upon the conduct of the flagman. After looking carefully when within three feet of the track and when he could see 105 feet to the west, he was not bound to anticipate that the defendant would propel a. train of cars over that switch-track without signal or other warning," at such an excessive rate of speed as to run bim down while he was taking the five or six steps necessary to cross the track. Glushing v. Sharp, 96 N. Y. 676; McNamara v. N. Y. C., etc., R. R. Co., 136 id. 650; Oldenburg v. N. Y. C., etc., R. R. Co., 124 id. 414; Wilber v. N. Y. C., etc., R. R. Co., 8 App. Div. 138; Pitts v. N. Y., L. E. & W. R. R. Co., 79 Hun, 546; Kane v. N. Y. C., etc., R. R. Co., 132 N. Y. 160.

After looking and listening when within three feet of the track, the plaintiff' had no right to close his eyes and ears while walking over the crossing.' The duty to' look and listen was continuous, and the jury was so instructed. It is urged on this motion that thb plaintiff should have been nonsuited for his failure to look again toward the west. Whether he should have looked to the west againj in ,view^ of the conduct of the flagman, and under all the circumstances, was a question for the jury to determine. It was his duty to look after he has passed the obstructions so that he could see the track for a considerable distance. This he did, and more, for he stopped that he might look and listen with greater certainty. He was not bound to see the train, unless by-a reasonably careful exercise of his faculties he would have seen it. Greany v. L. I. R. R. Co., 101 N. Y. 419; Shaw v. Jewett, 86 id. 616.

It was not his duty, as a matter of law, to look at the point from which he could see the greatest distance, nor was it his duty to look at the precise moment of time when the train could have been seen. When, so far as a pedestrian knows, a train is as likely to come upon him from one direction as another, the courts cannot adjudge bim guilty of negligence for failing to look in a particular direction at a particular moment of time. While stepping onto the track, he was looking to the east and listening for a train. We cannot say as a matter of law that he should -have been looking to the west, when he had, only a few seconds before, looked in that direction. Waldele v. N. Y. C., etc., R. R. Co., 4 App. Div. 549; Rodrian v. N. Y. C., etc., R. R. Co., 125 N. Y. 526; Seeley v. N. Y. C., etc., R. R. Co., 8 App. Div. 402.

The learned trial judge, in his charge, reviewed the material faetá and fully instructed the jury upon the law in language so clear and plain as to be comprehended by all. The defendant’s counsel requested the court to charge, that if -the plaintiff’s vision was obstructed by the temporary volume of smoke, it became his duty to wait until the smoke had cleared away before attempting to cross the track. The court declined to change the charge on that subject, and defendant’s counsel excepted. .The charge as made left it to the jury as a question of fact to say whether'the smoke obstructed his view, and whether the plaintiff should have again looked in that direction. Since the decision of the Court of Appeals in McNamara v. N. Y. C., etc., R. R. Co., 136 N. Y. 650, the cases of Heaney v. L. I. R. R. Co., 112 id. 122, and Foran v. N. Y. C., etc., R. R. Co., 64 Hun, 510, are not authority for all that appears to have been there decided with reference to the duty of a pedestrian whose view of a railroad track is partially obstructed by smoke. In this case, however, the evidence did not show that there was sufficient smoke to entirely obscure the view. The facts to which we have alluded were not all undisputed, but they required that the case be submitted to the jury.

It is further urged that the verdict is excessive. The plaintiff generally earned at his trade $2.25 or $2.50 a day, and at the time of the trial he had been worldng for about eleven months for $53.50 per month, including Sundays. His foot was amputated a little above the ankle and a further operation became necessary two months thereafter. . An artificial foot has been adjusted to his limb so that he can move about with considerable freedom. He sustained other injuries producing much pain at the time, but from which he has recovered. It was a painful injury and. Operation and for a long period the plaintiff suffered intense pain, and continued to suffer more or less in the use of the artificial foot down to the time of the trial, and will probably suffer more or-less as the limb becomes tired throughout his natural life. The plaintiff was thirty-two years of age. The jurors saw him and had an opportunity of observing his.artificial foot; they were in a better position to judge of his earning capacity, of the probabilities as to the length of his life and of the extent to which the loss of this limb and the use of the artificial foot will incapacitate him, and of the pain and suffering that he has endured and will continue to endure from this and the other injuries which he received. An examination of the reported cases shows that verdicts' have been reduced or new trials have been granted in many cases where the verdict was no larger in proportion to the injuries than that-rendered in this case; and, on the other hand, many verdicts have been sustained where the amount awarded as damages was far greater in proportion to the injury than the verdict, rendered in . this case. It was the duty of the jury to fully compensate the plaintiff for the pain and suffering that he has endured. and will endure in the future and his loss of services and incapacity to work. I am not convinced that the verdict ought to be reduced or set aside as excessive. The motion for a new trial is, therefore, denied. ■ '

Motion denied.  