
    Cornelius Dorr, Jr., Appellant, v. Lehigh Valley Railroad Company, Respondent.
    Fourth Department,
    July 9, 1912.
    Railroad — negligence—injury to passenger by sudden stopping of train —. evidence — erroneous nonsuit.
    In an action by a passenger to recover for personal injuries alleged to have been caused by the sudden, stopping of a train in an effort to avoid injury to a person on the tracks at a crossing within the village limits where no flagman or gates were maintained, evidence examined, and held, that the court erred in granting a nonsuit.
    Spring and Robson, JJ., dissented.
    Appeal by the plaintiff,. Cornelius Dorr, Jr., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Qnondaga on the 13th day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Onondaga Trial Term, and also from the order entered in said clerk’s office on the 20th day of October, 1911, dismissing the complaint.
    The action was commenced on the 19th day of June, 1911, to recover damages sustained by the plaintiff alleged to have been caused solely through the negligence of the defendant. At the close of the evidence the court denied defendant’s motion for a nonsuit but reserved decision pending the verdict of' the jury. The cause was duly submitted to the jury who returned a verdict in favor of the plaintiff in the sum of $4,000. Upon motion of the defendant’s counsel the verdict was set aside and the nonsuit granted. From such judgment of nonsuit this appeal is taken.
    
      Thomas Woods and James F. Carberry, for the appellant.
    
      James McCormick Mitchell and Bradley Goodyear, for the respondent.
   McLennan, P. J.:

On the 25th day of May, 1911, the plaintiff boarded one of the defendant’s trains as a passenger at Camden, N. Y., for the purpose of riding to Sylvan Beach, N. Y. between which points the defendant operated part of its railway system. The tracks of the defendant’s railroad run in a southerly direction toward Sylvan Beach and the tracks of the Rome, Watertown and Ogdensburg Railroad Company run nearly parallel with the tracks of the defendant and are some fifty or sixty feet easterly from them. On the day of. the accident, as the train upon which the plaintiff was a passenger was leaving Camden station, there was another train on the Rome, Watertown and Ogdensburg railroad tracks going in the same direction, leaving at about the same time. It appears that about a quarter of a mile south of the Camden station there is a highway crossing at grade, crossing both the tracks of the defendant and the tracks of the Rome, Watertown and Ogdensburg railroad, known as the Preston Hill crossing. This crossing is within the village limits of the village of Camden and at the time of the accident there were no gates or flagman maintained at this crossing by the defendant company and so far as appears never had been. The train in question proceeded south from, the Camden station toward the Preston Hill crossing, gradually increasing its speed from ten to twenty miles an hour. About an eighth of a mile from the station the engineer sounded the whistle for the crossing. The Preston Hill crossing, so called, crosses the Rome, Watertown and Ogdensburg tracks and the defendant’s tracks at an angle a little less than a right angle and at the time the defendant’s train was proceeding from the station toward the crossing in question there was an old man by the name of Durr walking along the sidewalk on the Preston Hill road from the direction of the Rome, Watertown and Ogdensburg tracks toward the tracks of the defendant. The defendant’s engineman, who was on the right side of the cab, did not see Durr coming and the fireman first saw Durr half way between the Lehigh Valley and the Rome, Watertown and Ogdensburg tracks, walking slowly, pushing a lawn mower in front of him. The man came to within a few steps of the defendant’s train when, as he did not stop, the fireman yelled to the engineer to. stop. The engineer thereupon applied the emergency brakes instantly but was unable to stop the train before it had passed over the crossing and struck Durr, causing his death. The sudden impact resulting from the application of the emergency brakes caused the injuries to the plaintiff for which he complains.

There is a dispute in the evidence as to whether or not any bell was rung or other warning given, and the inference is proper that the man who was killed,saw the train approaching on the tracks of the Rome, Watertown and Ogdensburg Railroad Company and safely crossed ahead of the train which was approaching on those tracks and if any warning was given by the engineer or fireman on the defendant’s train he apparently believed that such warning came from the train belonging to the Rome, Watertown and' Ogdensburg Railroad Company and that, therefore, having crossed the tracks in safety, he did not have to give attention to such warning.

The plaintiff claims that the defendant was guilty of negligence in the management and operation of its train and the sole question presented upon this appeal, a nonsuit having been granted, is whether or not there is any evidence which would justify the submission of the case to the jury.

The plaintiff proved that he was a passenger in one of the defendant’s cars; that without warning, and- while the train was proceeding at a speed of about twenty miles an hour, within the village limits of the village of Camden, the train came to a sudden stop with a violent jolt, throwing the.plaintiff out of his seat and causing the injury in question.

The defendant gave evidence tending to show that the accident occurred by reason of the negligence of Durr; that the usual crossing signal was given, two long and two short blasts of the whistle, when the engine was about half way between the station and the crossing; that the speed of the train was between ten and twelve miles an hour; that the engineer did not see the man who was killed; that the fireman first saw him half way between the Lehigh and the Rome, Watertown and Ogdensburg tracks, walking slowly along, pushing a lawn mower in front of him; that the fireman did not see Durr look up but thought that he Was going to stop; that when Durr came to within a. few steps of the defendant’s train, as he did not stop, the fireman yelled to the engineer to stop, who thereupon applied the emergency brakes -instantly, but was unable to stop the train before it had passed over the crossing and struck Durr, the man who was killed.

The defendant claims that no negligence is imputable to it for the reason that the accident to the plaintiff happened as the result of an effort on the part of the engineer of its train to avoid killing or injuring a third person, whose negligence, it is claimed, was the proximate cause of the accident for which the defendant is not responsible.

It is well-settled that upon an appeal from a judgment of nonsuit the appellant is entitled to the most favorable inferences deducible from the evidence, and if from the evidence produced the jury would be authorized to find a verdict for the plaintiff the nonsuit was error.

We think the court erred in granting a nonsuit in this case. From'the evidence presented the jury was justified in inferring negligence on the part of the defendant in the management and operation .of its train. It is undisputed that the man who was killed crossed the tracks of the Rome, Watertown and Ogdensburg Railroad Company in safety, and at the time was proceeding toward the tracks of the defendant’s railroad; that at that time a train was approaching on the tracks of the Rome, Watertown and Ogdensburg railroad, and the jury would be justified in inferring that the dead man saw that train approaching, .and that after he crossed those tracks in safety he did riot give attention to any warnings which might have been given by either train, believing that such warnings came from the train on the Rome, Watertown and Ogdensburg tracks. It is undisputed that the only warning given by the defendant’s engineer was the ordinary crossing signal, consisting of two long and two short blasts of the whistle. Therefore, a question of fact was presented as to whether or not the defendant, under the circumstances, used all the care and skill in the management and operation of its train which it was required to use for the protection of its passengers. It is also undisputed that the defendant did not maintain gates or keep a flagman at the crossing in question, and it was a question of fact for the jury to say whether or not the defendant exercised the care and prudence imposed upon it to protect its passengers from injury. The jury might well have found under the evidence in this case that if there had been gates or a flagman at this crossing the accident would not have happened for the reason that the man who was killed could not have gotten upon the tracks, and especially is this true when we take into consideration the evidence that the fireman saw the man approaching but supposed that he was going to stop and, therefore, did nothing to warn him or to stop the train until it was too late. These were all questions of fact for the jury upon the proposition as to whether or not the defendant was guilty of negligence in the operation and management of its train.

In the case of Brown v. N. Y. C. R. R. Co. (34 N. Y. 404) a passenger in defendant’s train was injured in consequence of a collision with a cow feeding on the track, and. the defendant claimed that because the statute did not require it to. maintain fences at that particular place, it was not liable to the passenger injured, and in the opinion of the court, written by Peokham, J., it is said: “It is no answer to say that- the statute allowed the defendant to run without constructing any fence or cattle guards, or having a watchman to keep off cattle from the road in such case, and if the road comply with the law it cannot be liable. The statute has imperatively required certain things to be done, but such requirements are by no means the measure of the defendant’s care or conduct in the transportation of passengers. These requirements the road must comply with, but it cannot, therefore, neglect other necessary and proper precautions. The defendant here was bound to exercise all the care and skill which human prudence and foresight could suggest. This language is broad and comprehensive, but it is the language of the law. (Bowen v. The New York Central Railroad Company, 18. N. Y. 408.) This care. extends to' all measures necessary and proper to secure the safety of the train and passengers, as well as to the management of the train itself. " * * The statute authorizes the defendant to cross roads above or below the surface of wagon roads. It simply gives to. defendant the power; it does not impose the obligation to do so. The defendant may keep a watchman where it crosses such roads on the same surface; the statute does not require it. The defendant may run slower at such a point; the statute does not direct it. ■ But the defendant must neglect all these precautions at its peril. Either one will give safety to its passengers. If it will neglect and disregard all, it does so at the peril of being answerable for the consequences — for all damages to its passengers caused by such neglect, -x- * -x- . qpg cars on this occasion were on a straight plain for some two miles directly before they reached this place. It was in the open day; the cow, of course, plainly visible to those upon the engine; yet the train rushes with undiminished speed until the injury occurs. The engineer, of course, saw or might have seen her. The result to the defendant is the same in either case. If her being there was a surprise to him, he should have seen her in the exertion of that extreme care he was bound to, exhibit at such a place, and then the defendant would have been hable, if the accident might have been avoided ‘by the most skillful and prompt use of all the means in its power.’ * * * But it is insisted that, if the defendant he held responsible for such accidents, it will be compelled to keep a watchman at road crossings, and that such an expense the defendant could not afford. The plain answer to such a position is, that the law requires of defendant the exercise of the highest care that human prudence and foresight can suggest for the safety of its passengers. If such a measure be necessary, it must be adopted, or defendant must answer the consequences.” In the case at bar the defendant insists that the measure of its obligation to the plaintiff was to use the care and skill which ordinarily prudent men would exercise under like circumstances and that, therefore, under the evidence in this case it is not liable. The defendant calls attention to the case of Stierle v. Union R. Co. (156 N. Y. 70), in which it was said: “ The obligation of carriers of passengers to exercise the highest degree of care, which human'prudence and .foresight can suggest, only exists with respect to those results which are naturally to be apprehended from unsafe roadbeds, defective machinery, imperfect cars, and other conditions endangering the success of the undertaking. (Morris v. N. Y. C. & H. R. R. R. Co., 106 N. Y. 678; Palmer v. Penn. Co., 111 ib. 488; Palmer v. D. & H. C. Co., 120 ib. 170.) In every case the degree of care to be exercised is dependent upon the circumstances and, if the accident- is attributable to the existence of defects in the road-, or in the mechanical appliances availed of for the operation of the railroad by reason of which there Ayas a possibility of loss of life or limb to the traveling public, the strict rule requiring the highest degree of care and of human skill would be applicable. The common carrier is not an insurer of the safety of its passengers; but it is, and properly should be, bound to use its utmost skill and vigilance to guard against the possibility of accidents from the condition of its road and of the machinery used in the transportation of passengers. In this case the plaintiff, if he was to be-believed, was injured because of the alleged negligent manner in which the driver of the car attempted to move or switch his car from one track tó the other, in order to cross the Harlem River bridge, then being repaired and permitting the use of only one track. Under those circumstances, the defendant was only liable for the failure of the driver to use that skill and care which would be required of an ordinarily careful and prudent man. * *" * However the rule * * * might be correct under different circumstances.”

In the Stierle case, above quoted, the correctness of the-learned.trial judge’s charge to the jury was being reviewed, and the Court of Appeals held that error was committed in charging, as applicable to the case there at bar, that the degree of care required of the defendant was all the care and skill which human prudence and foresight could suggest. It was not held in that case, nor in any other case, that under facts' similar to the case at bar a question of fact was not presented for determination by a jury.

Upon the evidence presented in this case the court should have permitted the jury to say whether in the exercise of the highest care that human prudence and foresight could suggest the railroad company should not have taken some means to guard the crossing by gates or a flagman so as to prevent such an accident, and whether the employees of the defendant in charge of the train omitted to do anything which in the exercise of ordinary care and prudence reasonable men would have done to have avoided the accident.

It follows, therefore, that the order and judgment appealed from should he reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, Kruse, J., in result in a separate memorandum, except Spring and Robson, JJ., who dissented.

Kruse, J. (concurring):

I concur because it. can be found from the evidence that the engineer and fireman were negligent in failing to give the usual crossing signals, and if that had been done the accident would not have occurred. While the engineer was entirely justified in attempting to stop his train after he discovered that a collision with the man on the crossing was imminent, still, if the man went upon the track through the negligent failure to give him proper warning, the defendant is liable for the injury to the plaintiff passenger, resulting from the sudden and abrupt slowing down and stoppage of the train, and that,

I think, is so, even though the man who was killed at the crossing was also negligent in going upon the tracks.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  