
    Lennon v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, First Department.
    
    October 20, 1892.)
    1. Crossing Railroad Tracks—Care Necessary—Instructions.
    In an action for injury received in crossing a railroad track in a street, the court charged that it was the person’s duty, when about to cross the track, to take means of ascertaining whether a train was approaching thereon, and, if he neglected so to do, then there could be no recovery; that he says that he took such means; that, as he was standing on the track, he looked, and saw no train approaching; and that after he left the sidewalk, and before reaching the track, he listened, and heard no ringing of the bell. Held that, the court’s attention not having been specifically called to the fact that his charge might not be considered as declaring it necessary to look, as well as listen, while passing towards the track, refusal to charge that it was the person’s duty to look in the direction from which a train was to be expected on the track before entering thereon, and if by looking he could have seen the train and avoided the accident, and he did not so look, there could be no recovery, was not ground for reversal.
    2. Same.
    Refusal to charge that if the person looked and saw the train, and started to ' cross ahead of it, there could be no recovery, whether he started to cross, taking the risk of crossing in front of it, or omitted to be governed by the fact that he had seen it, is reversible error; there having been nothing in the charge covering the proposition, and the facts being presented by one view of the evidence.
    8. Credibility oe Witness—Conflicting Statements.
    There being evidence that the person injured testified in material respects differently from his statement made on a visit to the office of defendant’s attorney, and he having, on his attention being called to the discrepancy, denied making the first statement, it was error to refuse to charge that, if the jury believed he had made a statement in material conflict with his testimony, they might consider it in determining what credit to give his testimony.
    Appeal from circuit court, 27ew York county.
    Action by Patrick Lennon against the New York Central & Hudson River Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying motion for new trial, made on the minutes of the judge, defendant appeals. Reversed.
    Argued before Van Brunt, P. J., and O’Brien, J.
    
      Frank Loomis, (D. W. Tears, of counsel,) for appellant. Henri Pressprich, (L. E. Chittenden, of counsel,) for respondent.
   • O’Brien, J;

This action was brought by plaintiff to recover damages for the loss of services of his infant son by reason of personal injuries alleged to have been negligently inflicted by defendant at or near Forty-Seventh street and Eleventh avenue in the city of New"York, on May 15,1886. Plaintiff’s evidence tended to show that he resided on the westerly side of Eleventh avenue, between Forty-Eighth and Forty-Ninth streets; that the avenue at this point,,and north and south of it, is 100 feet wide, and straight, and defendant’s trains run in center, on four rails, at grade. It is paved like a city street. On both sides are tenement houses, and streets 60 feet wide cross it, upon some of which streets are street railroad tracks, which cross the tracks of the defendant’s road at grade. The son, who resided with plaintiff, was eight years old at the time of the accident, healthy, and of ordinary intelligence, and for four years prior to the accident had crossed the avenue and defendant’s tracks three or four times daily, going to and from school, and had seen a great many of defendant’s trains going up and down the avenue. The son testified that on the day mentioned, in going to call a1 doctor, he crossed Eleventh avenue, going down the westerly side to Forty-Seventh street, across Forty-Seventh street, and reached curbstone, preparatory .to crossing the avenue, at a point in front of a grocery store, 15 feet southerly from Forty-Seventh street crossing. “At curbstone he tarried a moment, looked up and down the avenue, listened, saw and heard nothing, and then . started to go across tracks. He ran straight across for 25 feet, and had about cleared the second rail be came to, when he was struck by one of defendant’s locomotives, south bound, which was running down grade at a speed faster than a horse can trot, without ringing a bell or blowing a whistle.” Plaintiff also introduced .evidence tending to show that on that day there was a light, rain, and that at the time of the accident the atmosphere was foggy or hazy. As to the distance that the boy could see up the avenue, he testified that his vision was unobstructed for a distance northward of about 55 feet, which would be about opposite a junk shop, where there were standing about 10 small two-wheeled wagons, such as are used by junk dealers.

On the part of the defendant, the evidence tended to show that the injuries resulted from an attempt of the boy to board one of the cars of the defendant’s train, while in motion down the avenue, after having been warned against the attempt. The plaintiff, in order to recover', was bound to show, not only that his son’s injuries resulted from the negligence of the defendant, but also that the son himself was free from any negligence which contributed to the injuries. As to the first, the testimony adduced tending to show that, though running through a public thoroughfare at a reasonably high rate of speed, no bell was rung or whistle sounded, would be sufficient to justify the submission of this question to the jury. Upon the other proposition, of establishing that his son was free from any negligence that contributed to his injuries, the testimony was far from satisfactory, and, in view of the law as laid down in Tucker v. Railroad Co., 124 N. Y. 309, 26 N. E. Rep. 916, a serious question was presented, whether it was not the duty of the court to dismiss the complaint for failure to sustain the burden with respect to this proposition, which was placed upon the plaintiff. In that case it was said: “ The law requires a traveler, before crossing a railroad track on a public highway, to look and listen for the approach of trains. If he omits to do so, and sustains injury while crossing, he cannot recover, because of such omission. That which it is his duty to do he * * * must, in an action to recover for damages sustained, prove was done, or, at least, must prove facts from which inference can reasonably be drawn that he performed his duty in that respect. It will not be presumed that he looked; it must be proven. The plaintiff attempted to meet these requirements by the evidence of a witness who testified that before the intestate crossed the track, in the doing of which he was struck by the locomotive and killed, he stopped in the center of the switch track, eleven feet from the north rail of the track upon which the locomotive was running, and shifted the bag which he was carrying from one shoulder to the other, resting it upon the bumper of a ear standing upon the track as he did so, and that at this time his face was turned in the direction of the approaching engine. He then passed on in a southerly direction for a distance of about fourteen feet, when he was struck. The witness further testified that, after changing the bag from one shoulder to the other, he did not again turn his head to the left, as it would be necessary for him to do in order to see the approaching locomotive. It is urged that, inasmuch as it appears that his face was turned in the direction from whence the locomotive came, a jury should be permitted to find that he did look, and thus observed that measure of care and caution which the situation imposed. We are unable to agree with that contention. * * * But if the inference was permissible that he looked at the moment of changing the bag, it does not meet the requirements of the case. He had still six tracks to cross, and was then eleven feet from the south rail of the first track. To look then, and not again; to go on from that point without observing the further precaution of watching for the approach of trains upon tracks almost constantly in use,—was not a proper observance of that care which it was his duty to exercise.” See cases cited. In that case, which is in many other respects analogous to this, the reason assigned for not seeing the approaching train was the fact that it was windy and snowing, while here the reason assigned is a hazy and foggy atmosphere. The evidence here tended to show that the boy, while on the sidewalk, and preparatory to crossing, looked up and down, and listened for approaching trains. Though we have the width of the avenue given as 100 feet, the distance from the curbstone to the most westerly track, which was the portion of the street traversed by the boy before reaching the first track, is not given; but we know from the circumstance that the defendant company bad but 2 tracks of 4 rails, which were placed in the center of the avenue, and that this space was greater than 11 feet. In the Tucker Vase, as we have seen, although there was evidence to show that when within 11 feet from the track the person injured looked, it was held that this was not a surficient discharge of the obligation which requires of a traveler on the highway, before crossing a track, to look and listen for the approach of trains; and to repeat what is stated in that case respecting what was done by the person injured when but 11 feet from the track, “to look then, and not again, * * * was not a proper observance of that care which it was his duty to exercise. ” It is unnecessary, however, for us, in view of other exceptions taken to rulings made, which we regard as good, to place our reversal upon this ground. But we have alluded to this feature of the case in order to emphasize' one of the exceptions referred to, which the defendant urges upon this appeal. The learned trial judge refused to charge the defendant’s seventh request: “That it was the duty of the boy, William Lennon, to look in the direction from which a train was to be expected on the track before entering upon the track; and if by so looking he could have seen the train, and stopped, and avoided the accident, and he omitted so to look, the plaintiff cannot recover. ” It is true that the court had charged that “it was the duty of William Lennon, when he was about to cross the track, to take means of ascertaining whether there was or was not a train approaching on that track, and, if he neglected to take some means, the means that you would expect from and of a child of his age, and if he was injured by reason of his neglect to take such means, then his father cannot recover in this action. He says he did take such means. He says that, as he was standing on the track a short distance soutit of the southerly line of Forty-Sixth street and Eleventh avenue, he looked north and south, to see whether there was any train approaching, and that he saw no train approaching. "He says that after he left the sidewalk, and before he reached the track, he listened, and heard no ringing of the bell. ” It will thus be seen that the defendant’s attorney, by exception to the charge, again raised the point presented by the seventh request. The looking and listening on the sidewalk. and thereafter neglecting to again do both while traversing the space between the sidewalk and the rail, was not a compliance with the duty resting upon him.

Were this the only refusal to charge requests to which the defendant was entitled, we should not disturb the verdict, because, had the court’s attention been more specifically directed to the distinction which the defendant’s counsel sought to make between the broader proposition contained in his request, as to the necessity of using all his senses, as contrasted with the more limited exposition of the law given by the court in its charge, that the boy’s duty might be discharged by listening, simply, it would no doubt have been corrected. The defendant, however, asked the court to.charge that “if the boy, William Lennon, looked and saw the train, and started to cross ahead of it, the plaintiff cannot recover, whether the boy, William Lennon, started to cross, taking the risk of crossing in front of the train, or omitted to be governed by the fact that he had seen it. ” This was refused. As there was no passage in the charge covering the proposition embraced in this request, and as, in one view to be taken of the evidence, it was one which the jury might consider, the defendant was entitled to have them instructed upon this point, and the refusal so to instruct them we think was error.

In addition to this, it appears that during the trial evidence was offered to show that in material respects the testimony of the boy given upon this trial was different from his version upon the occasion of his visit, some time prior thereto, to the office of the defendant’s attorney, where it was taken by a stenographer, and used upon the trial. The boy’s attention was called to the discrepancy thus appearing between his two statements relating and leading up to his injuries, and he was permitted to explain, which in the main resulted in his denial of the making of the first statement in the office of defendant’s attorney. In his charge the court in no way referred to this circumstance, and the defendant thereupon requested “that if the jury believe that the boy, William Lennon, has heretofore made a statement in conflict with his testimony as to material features of the.accident and its circumstances, they must take that into consideration in determining what credit they will give to his testimony, and have the right to disregard his testimony altogether. ” The court made answer: “I refuse to charge, except as I have charged.” As there was no reference or allusion in the charge, in any way, to the discrepancy thus appearing, and as the request contained a correct statement of the effect which the jury should give to such. discrepancies, as bearing upon the credibility of the witness, there was no reasonable ground for refusal, and, the defendant having the right thereto, such refusal was error.

Besides these, many questions in respect to the admissibility of evidence have been pressed upon our attention, but, in view of what we regard as errors in the court’s presentation of the case to the jury, it is unnecessary to consider them; the latter, in our opinion, requiring that the judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J.

I am of the opinion that the complaint should have been dismissed. Concur in reversal and new trial.  