
    Elizabeth Laible, Plaintiff, v. The New York Central and Hudson River Railroad Company, and The Fall Brook Railway Company, Defendants.
    
      Negligence—a Um’se and wagon- delayed for twenty minutes on a street by a freight1 train standing on the crossing—two concurrent and pi'oximate causes of an accident.
    
    
      A person driving a gentle horse, accustomed to railroads, upon a village street, crossed the railroad tracks of the Fall Brook Railway Company (the management of whose trains was controlled under a traffic arrangement hy the New York Central and Hudson River Railroad Company), and within a short distance approached the tracks of the1 New’ York Central railroad, on which stood - a freight train, preventing passage over them, no gateman being at the crossing and the gates being open.
    The freight train continued to obstruct passage over'the street for some twenty minutes, although the waiting, wagon was in full sight of its employees, at the end of which time a train approached the street behind the wagon upon the tracks of the Fall Brook railway, and crossed it, without giving any indication hy whistle or hell, or other signal, of its approach. The horse was being held by the head by the driver, but becoming frightened, jumped to the right, overturned the wagon and injured the plaintiff, who was in it.
    
      Held, that the question as to whether the plaintiff was guilty of contributory negligence was clearly one for the consideration of the jury;
    
      That the question as to whether the New York Central Railroad Company was negligent in obstructing the crossing for an unreasonable length of time, and the question whether the Fall Brook Railway Company exercised reasonable care in conducting its train across the street, without giving any signal of its approach, and without stationing any person on the front of the train, should have been submitted to the jury;
    That the delay of the New York Central Railroad Company in moving its train, and the approach of the train of the Fall Brook Railway Company, were both concurrent and proximate causes of the accident, without the existence of each of which the injury to the plaintiff would not have occurred.
    Motion by the plaintiff, Elizabeth Laible, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit granted by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Wayne on the 1st day of June, 1896.
    The defendant, the New York Central and Hudson River Railroad Company, that will be referred to hereafter as the “ Central,” and the Eall Brook Railroad Company had a business and traffic arrangement with reference to their roads at Lyons, the third provision of which was as follows: “ The time tables shall be made and trains moved under directions of the officers of the party of the second part (the Central), and the engineers, conductors, brakemen and other trainmen while on the said road (the Eall Brook) shall be under the control of the officers of the party of the second part.”
    It was further provided that the Central “ will furnish at Lyons a passenger station, a freight house, the necessary switching engines, agent, clerks, laborers, engineers, firemen, switchmen and the other station help to properly transact the joint business of the parties. * * * The party of the second part [the Central] shall employ and control all employees of the Lyons station.”
    The effect of this instrument was that at Lyons, where the Fall Brook connected with the Central, the trains of the Fall Brook were to be operated under the direction of the Central, but the trainmen on the Fall Brook cars were to be employees of that company. The Central had six tracks at this point- running east and west, track No. 1 being the farthest south.
    In the village of Lyons, coming from Geneva and intersecting the West Shore road and the Central road at right angles and the Fall Brook tracks nearly so, was Geneva street, a street running north and south. The West Shore road was 450 feet south of Central track No. 1. On the south of the Central tracks and near track No. Í was the passenger depot of the Central, 383 feet east of Geneva street. Directly south of this passenger depot and parallel with the Central tracks for a considerable distance were two tracks of the Fall Brook that proceeded parallel to each other until within a short distance of Geneva street, when they divided into what is called crossovers, the northerly crossover diverging to the north and uniting with track No. 1 of the Central after crossing Geneva street, which is called the “ Central crossover,” the other crossover diverging southerly and crossing Geneva street about 70 feet south of the “ Central crossover,” and passing in a southerly direction until it intersected the West Shore road, thus creating a “ Y,” which commenced east of Geneva street. This was called the West Shore crossover. The purpose of these crossovers was to connect the Fall Brook trains with the other railroads. On the west side of Geneva street and near Central track No. 1, and at about the point where the Central crossover connects with the west line of Geneva street, the Central had established a gate house and had a gate-tender. Gates had been placed at that point or a little north of it across Geneva street, and were in operation. There were no gates at the West Shore crossover or at the West Shore crossing.
    Passing north along Geneva street, stretching from the West Shore railroad on the east side of the street to Franklin street, was a row of houses very much obstructing the view to the east. Franklin street. was three rods wide and was parallel with- the Central and was located on the south of and near to the Fall Brook tracks. It commenced at Geneva street and ran east. Along Franklin street on the south were several buildings commencing at the intersection with Geneva street.
    On the morning of the 10th of September, 1893 (being Sunday), the plaintiff, a young lady of about thirty years, residing about four miles south of Lyons in the country, started with her sister Caroline and her brother Henry to attend the morning service at a church in Lyons. They had a top buggy, the top being about half way down. They had a gentle horse that was accustomed to railroad trains and one that the ladies had driven. At about half-past ten in the morning they reached the West Shore tracks, and, seeing no trains, passed over and up to the West Shore crossover, and looking in all directions and seeing no trains, crossed that crossover and came to or near the Central crossover and observed that the gate. was up as they were proceeding, but there was no gateman there to " give directions; yet in looking they observed that on one of the north tracks of -the Central a freight train covered the crossing. They stopped and waited there twenty minutes, all the time the gates being up; the freight train moved a little now and then, and at one time it was opened wide enough to allow some foot passengers to pass through. The plaintiff’s carriage and another carriage containing a brother and two young ladies that were-waiting a short distance behind to get over this crossing were in plain sight of the Central employees, yet the train closed again and no effort seems to have been made by the persons in charge of the freight train or by the gateman who was at a point upon the track near by to aid the passage of these people over the crossing. After the train closed, the plaintiff’s brother, who drove the horse, dropped the lines upon the dashboard of the wagon (which one of his sisters picked up) and went forward to see if the cars could not be separated sufficiently to permit him to drive through; after he had got out of the buggy and had taken a few steps he looked both east and west and then observed a train coming from the east upon the West Shore crossover nearly south .of the Central station and 200 or 300 feet east of Geneva street. This was a Fall Brook train consisting of four or five box cars which were being pushed by a locomotive which was in the rear of the cars. They were approaching at the rate of from twelve to fifteen miles per hour. The brother, immediately upon seeing the train, hurried back to the horse, seized it by the bits and was holding it when the Fall Brook train passed in the rear of the horse and buggy at a distance of about seventy feet. The ladies remained in the carriage. The horse becoming frightened jumped toward the right, the wheels of the buggy came in contact with the north rail of the Central crossover, the buggy overturned and the plaintiff was thrown out and her arm broken at the elbow so as to occasion permanent injury.
    The plaintiff’s evidence tended strongly to prove that no whistle ■ was sounded nor bell rung or other signal given indicating the approach of the Fall Brook train, nor was there any person upon the front box car of the train or any of those cars, nor did the gate-man give any warning of the approach of this train, and at the time of the accident the plaintiff’s horse was standing from twenty to thirty feet from the south rail of the Central track, and either between that and the Central crossover track, which were twenty-six and one-half feet apart, or that a part of the rig stood upon the track of that crossover.
    At the point where the injury occurred the view east along the West Shore crossover was unobstructed for about 600 feet only. It would have been impossible for the plaintiff to have turned her horse around, and have passed south of the West Shore crossover to a point of safety after the Fall Brook train - came in sight. In order to have reached her point of destination, unless she passed over the Central crossing, she would have been compelled to have driven around out of her way' six or eight miles. The plaintiff and her driver were familiar with this crossing, but had not observed trains upon the Fall Brook crossover on Sunday, and did not know that it was used on that day for the purposes of their trains There was no noise made by the Fall Brook train in passing behind the buggy more than the ordinary-noise created by a passing train.
    
      W. S. Jenney, for the plaintiff.
    
      Albert H. Harris, for the New York Central and Hudson River Railroad Company.
    
      A. S. Kendall, for the Fall Brook Railway Company.
   Ward, J.:

The plaintiff claims that the negligence of the two defendant railroad companies combined to cause the injury which she sustained; that the Central was at fault for obstructing the crossing an unreasonable length of time, whereby she was detained until, by the action of the Fall Brook Company, her horse was frightened while she was thus detained, and that in this regard the Fall Brook was negligent. The Fall Brook claims- that if in approaching that crossing it had given notice of its approach, either* by ringing a bell or blowing a whistle, it would have created more noise than it did by passing along in the usual way; that it cannot be said that the horse would have been less frightened by such increased noise, but probably more so; that it had the undoubted right, except as to persons who were waiting to cross at its track, to pass over the street at the rate of speed it was going without giving any signals whatever.

The Central claims that the proximate cause of the accident was the fright of the horse; that it did not frighten the horse; that while it was true perhaps that, if the horse had not been detained by the Centra] occupying .the crossing, and preventing the passage over it for twenty minutes, the plaintiff and her party would have passed over it in safety, and the horse would not have been frightened, still the act of the Central Company was only a remote cause of the accident, and, under the decisions, it was not liable.

So, according to the claims of these defendants, neither corporation was liable. We are met in this case with'the familiar question as-to what is a proximate cause? A concurrent cause? An intervening cause in such cases?

We are obliged to confess that there is much confusion in the cases upon this subject. The courts have explained, refined, distinguished and. elaborated upon this subject until it is difficult to see to which class of those causes, if any, a given case belongs.

We may mitigate this uncertainty under the. conditions in this case, in our judgment, by an appeal to the first principles, to reason and to the fountain head of all jurisprudence, common sense.

It seems to be clear-that the causes which produced the plaintiff’s injury were concurrent, and they were both proximate causes, which we understand to be where two causes are operating directly to produce the same injury or result, and without the existence of each of which the result would not have happened, and if it so be that one of the causes is the negligence of one party, that party is responsible whether the other proximate cause was the result of negligence or otherwise. So that whether the proximate causes that we are considering were the result of the negligence of both of these defendants jointly, or only one of them was guilty of negligence, the part; guilty of negligence should respond in damages providing the plai tiff were free from contributory negligence.

In Galveston, H. & S. A. Ry. Co. v. Croskell ([Tex. Civ. App.] 25 S. W. Rep. 486), where it appeared in an . action for personal injuries against two railroad companies that the track was owned by one of the companies, but was used by both, and that they employed jointly all section employees, including the superintendent, but the men running the trains were employed by the respective companies, the accident was caused by an engineer, under the order of a superintendent, going on a side track where there was a steep down grade and attempting to couple some loose cars. The cars were pushed off the side track onto the main track, the two being connected by a split switch, and ran down the grade, colliding with a train of the other company and injuring the plaintiff, a fireman upon such train.. Held, that both companies were liable, the proximate cause of the injury being their joint negligence.

And in Thompson on Negligence (p. 1085, § 3) the author says: Where an injury is the combined result of the negligence of the defendant and an accident for which neither the plaintiff nor the defendant is responsible, the defendant must pay damages unless the injury would have happened if he had not been negligent.”

In Borst v. Lake Shore & Michigan Southern Railway Co. (4 Hun, 346; affd., 66 N. Y. 639) it was held that stopping an engine on a railroad track where it crosses a public highway in such a manner, as partially to block up the highway was an act of negligence.

In Chicago & N. W. Ry. Co. v. Prescott (59 Fed. Rep. 237; 8 C. C. A. 109) it was held that where the shying of a horse brings the vehicle into collision with the rear end of a tram which wrongfully obstructs most of the street crossing, such shying cannot be regarded as the sole proximate cause, and the jury is justified, in finding that the obstruction directly contributed to the accident.

There seems to be no difficulty about the rule thus assumed, and we will consider first the responsibility of the New York Central Company in connection with this accident. In order to do so prop- . erly we should bear in mind the exact situation and the connection of this defendant, with it.

When the plaintiff was obstructed on her way to church on this 'abbath morning, this defendant had control of three railroads at or r the point of the accident; it had leased the West Shore and' trolled that; it had a traffic relation with the Fall Brook so that it could control the management of its trains at the Lyons connection. It .had surrounded the plaintiff, therefore, at this time with a network of three, railroads. The obstruction on the Central was in front of her. The West Shore crossover of the Fall Brook was seventy-five feet behind her and the West Shore crossing still further behind. It will be seen, therefore, that the crossing at which the plaintiff was delayed was a dangerous one, and the duty and care of the Central Company as to people passing along the highway at that point should have been commensurate with the dangers of the situation. The plaintiff was not the servant of the Central; she was exercising her right of transit in passing along that highway. If there was any negligence on the part of the gatekeeper or the employees managing the freight train in front of her, it was the negligence of this defendant. The delay at this crossing, of twenty minutes was unreasonable, at least the jury was at liberty so to find.

The Legislature of this State has indicated its judgment in section 421 of the Penal Code upon the subject of the detention at highway crossings by railroad companies as follows: “A person acting as engineer driving a locomotive on any railway in this State * * * who shall willfully obstruct or cause to be obstructed any farm or highway crossing with any locomotive or car for a longer period than five consecutive minutes is guilty of a misdemeanor.”

The Legislature could not reach by personal punishment the intangible thing, the New York Central corporation, but it could prescribe a punishment for its- employees for obstructing these Crossings for a longer period than five minutes, and the necessity which moved the Legislature to enact this statute, doubtless, was the well-understood fact that the employees of railroad corporations quently obstruct with cars the highway crossings'to an unreasona1- and often oppressive extent, so that travelers upon our highways • greatly delayed.

No reason appears in the evidence why this delay of twenty utes, or any delay, further than was necessary for the passage the train, should have been occasioned by this freight train. T jury had the right to find from the evidence that there was no reason. It might have found that the delay of twenty minutes this case was inexcusable, nay, that it had assumed the more agg, .voted character of a public nuisance. It might have found that, as the train that frightened the horse did not arrive until twenty minutes after the plaintiff had been stopped by the freight train upon the crossing, that she would have passed beyond danger before the Fall Brook train arrived.

So, we meet the question sharply raised by the learned counsel for the Central, that this delay was not the proximate cause of the accident, Or one of them. The cases we have cited would seem to hold in the other direction.

An interesting case was presented to the Court of Appeals in Gibney v. State (137 N. Y. 1). The plaintiff, with her husband and child, while crossing a bridge in Syracuse- that it was the duty of the State to keep in repair, met an acquaintance and stopped to talk with him ; the child remained within a.few feet of the parents and suddenly fell through an opening in the bridge into the canal below; the father, as soon as lie discovered the boy was gone, plunged into the canal to recover the child, and both father and son were drowned.

The Attorney-General for the State insisted that the hole in the bridge ivas not the proximate cause of the father’s death.' The court held otherwise, and the plaintiff recovered.

It will be observed, in this case, that the immediate cause of the father’s action was the fact that hie child was in the canal and. liable to drown ; the prior cause was the hole in the bridge.

It is assumed in some of the cases, as a fair test of what a proximate cause is, is where the result following the cause is such as might reasonably have been anticipated by the wrongdoer in case of a tort,, or by a contracting party in the case .of a contract. But this ‘g not an invariable test, especially in cases of tort.

It was said by Earl, J., in Erhgott v. Mayor, etc. (96 N. Y. 280, ): “ It is sometimes said that a party charged with a- tort, or with ach of contract, is liable for such damages.as may reasonably he supped to have been in the contemplation of both parties at the time, with such damage as may reasonably' he expected to result under dinary circumstances from the misconduct, or with such damages s ought to have been foreseen or expected in the light of the attend-circumstances, or in the ordinary course of things. These vari- , modes of stating the rule are all apt to be misleading and in most cases are absolutely worthless as guides to the jury. (Leonard v. N. Y., etc., Tel. Co., 41 N. Y. 544.)

“Parties, when they make contracts, usually contemplate their performance and not their breach, and the consequences of a breach are not usually in their mind, and it is useless- to adopt a fiction in any case that they were. When a party commits a tort resulting in a personal injury, he cannot foresee or contemplate the consequences of his tortious act. He may knock a man down, and his stroke may months afterwards end in paralysis or in death — results which no one anticipated or could have foreseen. A city may leave a street out of repair, and no one can anticipate the possible accidents which may happen or the injuries which may be caused.”

In Grimes v. Louisville, N. A. & C. Ry. Co. (30 N. E. Rep. [Ind. App.] 200) it was held that where a horse was frightened by a freight car unlawfully obstructing a street and ran away and was killed, “it was not necessary that the precise injury which occurred should have been foreseen in order to render the unlawful and negligent act of defendant the proximate cause of the injury, as it is sufficient if such injury might reasonably have been expected to occur.”

It would seem, therefore, that in cases of negligence, in order to create a proximate cause, it is not in reason or by authority made necessary that the wrongdoer’s act would have necessarily produced the result complained of, or that he should have anticipated that it would.

In this case, when the Central obstructed the highway, it had knowledge that the plaintiff was waiting between the West Shore crossover of the Fall Brook and its southerly track, and knew or should have known that the train of the Fall Brook was liable to come and pass behind the horse waiting at the crossing. Horses that are usually gentle and kind and not liable to fright when they see an object before them are quite.Iiable to be frightened by something passing behind them that they hear and cannot see. Independent of this question of liability in connection with the Fall Brook train it was a question for the jury whether, when the Central assumed to stop people upon the highway this length of time, it should not reasonably have anticipated that events might occur,either from the passing of its own trains or the trains upon tir crossover or from other causes, or that the horse might become frightened or restless and thus cause-injury to the plaintiff. Much more should it be held responsible if it were guilty of a nuisance in obstructing the highway.

In Sellick v. The Lake Shore & M. S. Railway Co. (93 Mich. 375; 53 N. W. Rep. 556) a freight train was obstructing a highway in violation of a statute and detained plaintiff and his team when a passenger train came along, emitting smoke and steam, the Origin of which was obscured by a freight train. Plaintiff’s horses, which were gentle and used to trains, were frightened by the smoke and steam and ran away, injuring the' plaintiff. It was held that whether or not the obstruction' of the highway by the freight train was the proximate cause of the injury was properly submitted to the jury.

The Supreme Court. of Michigan in that case says :. “ The obstruction of the highway was a continuous • breach of duty. It was a cause operating at the time of the injury; the smoke and steam were concurrent rather than intervening causes. They were contemporaneous.”

And Cooley on Torts ([2d ed.] p. 76) lays down this rule: “ If the original act’ was wrongful and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through, the interven-.tian of other causes which are not wrongful, the injury shall be referred- to the wrongful cause, passing by those which wéré innocent.” •

A reference to cases in other States upon this subject may be appropriate. In Waller v. Missouri, K. & T. Ry. Co. (59 Mo. App. 410) it was held that where two proximate causes contributed to the injury, one, who by his own negligent acts brought about one of such cases, is liable for the injury resulting therefrom.

In Lake Shore & Michigan Southern Ry. v. McIntosh (38 N. E. Rep. [Ind. App.] 476) it was held that if a defendant negligently encroached upon and maintained an obstruction at the highway crossing which, concurring with the movement of a passing train, , produced the collision which resulted in the death of the decedent, then such negligence would be the proximate- cause of the collision,

In Ewing v. North Versailles Tp. (23 Atl. Rep. [Pa.] 338) a pub-lie road wag located between two railroads and was about thirteen feet lower than one and two feet lower, than the other. Plaintiffs were driving cattle along this road when they became frightened by an approaching train on the first-named railroad and they ran upon the other where they were killed. There was no fence between the road and the railroad and plaintiffs claimed that the township was liable for this reason. Held, that whether the absence of the fence was the proximate cause of the injury was a question for the jury.

In Andrews v. Mason City & Ft. D. R. Co. (42 N. W. Rep. [Iowa] 513; 77 Iowa, 669) it was held that negligence in delaying a railroad engine in a street for an unreasonable length of time is the proximate cause of an injury occurring by plaintiff’s team becoming frightened while passing the engine and by steam escaping therefrom.

We refer also to Engelbach v. Ibert (31 N. Y. Supp. 438); Quill v. Empire State Tel. Co. (34 id. 470, and cases cited, where Judge Adams exhaustively reviews the subject); The City of Albany v. Watervliet Turnpike & R. Co., 27 id. 848); Halestrap v. Gregory (1 Q. B. [1895] 561); Kincaid v. Kansas City, C. & S. R. Ry. Co. (62 Mo. App. 365); Howe v. Omhart (33 N. E. Rep. [Ind. App.] 466).

The learned counsel for the Central seems to rely upon Scaggs v. The President, etc., of the Delaware & Hudson Canal Co. (145 N. Y. 201). In that case the plaintiff’s intestate was stopped on the street of the milage at a railroad crossing where the gates were down ; a locomotive attached to a train stopping at the depot projected about twelve feet upon the highway; steam was escaping from an automatic or mechanical device upon this engine for that purpose, making the usual noisé. A horse and wagon was on the street waiting for the gates to be raised, and the driver was- having much difficulty in controlling the horse. The gatetender raised the gates sufficiently to allow the plaintiff’s intestate to go through, and after she passed the locomotive he raised the gates so that the horse and wagon could pass through as well. The intestate, after passing the locomotive, started to go diagonally across the street. The driver of the horse, finding himself unable to control him, hallooed at her, to which she paid no attention, but walked on and was struck by the horse, causing her death. Judge Gray held that the automatic escape of steam from the engine had nothing to do with the accident, and says : •

Whether the locomotive stood upon the highway to any extent was a circumstance which- had no possible connection with what happened to the woman. If Priester’s horse was so frightened by the escaping steam as to get beyond his control, precisely the same result would have happened if the .engine had been fifty or more feet back from where it was.”

It is not perceived how this case aids this defendant.

There was a serious question in this case, also, whether the decedent was not guilty of contributory negligence.

The counsel for the Central also calls, our attention to cases decided in other States, which we have examined, but .deem it unnecessary to dwell upon them.

The trial court held, as a matter of law, that there was nothing in the plaintiff?s case that should have been submitted to the jury, This was error.

In what we have said upon the facts we have not desired to express an opinion as to the merits of the case, as that might tend to prejudice the defendants upon another trial. We simply hold that the questions we have discussed were for the jury.

The next question arises- as to the liability of the Fall Brook Company. There is more difficulty in determining that question than in the case of the Central; but we are inclined to the opinion that the trial court should have submitted the case as' to that defendant to the jury also.

Did the Fall Brook exercise reasonable care in the conduct of its train in crossing Geneva street? — a street greatly used by the public, and,over which persons at that time of the day were constantly passing. Was it negligence in not having a person upon the front of this train of box cars that was being moved by an engine from behind over this crossing ? Had such person been there and seen the situation of the plaintiff and her party, waiting at the Central crossing and knowing that this train was to pass behind them and liable to frighten the plaintiff’s horse, might the accident have been prevented? Or should the. persons managing this train at a, reasonable distance east of such crossing have given some signal of the approach of this train so that persons who may have heen at or near the crossing could have protected themselves from the approach of this, train, or that the gatekeeper of the Central could have notice of such approach from such signals so that he could have warned the people waiting near his gates of this approaching train ?

It would seem that these were proper questions for the jury to-have considered against this defendant in this case.

It" is possible that the liability, or otherwise, of this defendant may be more clearly shown upon another trial, which we have reached the conclusion must occur as to the Central, and we think there should be a new trial as to both of the defendants.

Both defendants claim that the plaintiff was guilty of contributory negligence as a matter of law, and, therefore, the nonsuit was right. We will not discuss this point further than to say that the question of contributory negligence was clearly for the jury.

The plaintiff’s exceptions should be sustained and a new trial granted as against both defendants, with costs to abide event.

All concurred, except Follett, J., who dissented from that part of the opinion granting a new trial as to the Fall Brook Railway Company.

Plaintiff’s exceptions sustained and a new trial-ordered, with costs to abide the event.  