
    George B. Van Ostrand, as Administrator, etc., of Roscoe C. Van Ostrand, Deceased, Respondent, v. The Delaware and Hudson Company, Appellant.
    Third Department,
    May 2, 1906.
    Negligence — death, of person intending to take train — when not negligence for defendant to leave freight train standing between station and passenger tracks — contributory negligence of decedent.
    In-an action to recover for the death of an intending passenger at a railroad station it was shown that the train which the decedent intended to'take had gone, and that on emerging from the station he. found the first track (used as a switch track) occupied by a standing freight train, with an open interval of five feet between two of the cars. Seeing passenger cars standing on another switch track beyond, the decedent, without making any inquiry as to’the whereabouts of .his train, dashed into the opening between the freight cars, and Was killed by the cars coming together.
    
      Held, that no negligence was chargeable to the defendant;
    That, as the passenger train had gone, the defendant had no reason to apprehend that any person would attempt to cross the switch track;
    That, as the decedent had made no inquiry as to the whereabouts of his train, he was guilty of contributory negligence and assumed the risk of trying to find out for himself.
    Appeal by the defendant, The Delaware and Hudson Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 3d day of April, 1905, upon the verdict of a jury for $3,500, and also" from.an order entered' in said clerk’s office on the lltli day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.-
    This action is brought to recover against the defendant for negligently causing the death of the plaintiff’s intestate.' It was tried at a .Trial Term of the Supreme Court in Rensselaer county, and the jury found a verdict in favor of the plaintiff for $3,500, and from the judgment entered thereon, and from an order denying a new trial on the minutes of the court, this appeal is taken.
    
      Lewis E. Carr, for the appellant.
    
      Harry -8. ■ Sleieher {John B. Holmes of counsel], for the -respondent.
   Parker, P. J.:

The defendant operates a railroad running from Binghamton to Albany through the village of Oneonta, in this State. The depot and platform at Oneonta is practically on a level with the tracks, and opposite such depot are four tracks. The one next to the depot platform, numbered 1, is used as a switch track and is about thirty feet distant therefrom. The next two tracks, numbered 2 and 3, are the main line tracks, and the next track, numbered 4, is .used for another switch. . In taking any train at this station passengers must step from the platform of the depot onto the ground — but a slight step down — then on the ground for about thirty feet to track No". 1, and then across it to No. 2,' or 3, on which the passenger train stands.

On the 22d day of September, 1900, the plaintiffs intestate came to the depot at Oneonta, entered it on the side farthest from the tracks, passed directly through and went out upon the platform. He there found freight cars occupying track No. 1 and extending thereon the whole length of the depot, and which would effectually block, the way from the platform to the main line tracks, but that ^a space about five feet in width existed between two of such freight cars. Through this space of five feet, which was somewhat east of the easterly door of the depot, the deceased, attempted to pass over-track No. 1. Just as he reached the middle of that track the engine that was attached to the westerly end of such 'freight cars backed up, the opening was thereby closed and the deceased was" caught between the cars and killed.' On track No. 4 a number of passenger cars and a baggage ear were standing, the baggage car being at the westerly or Binghamton end of such train. No engine was attached thereto,, and such cars were not made up into a train and ready to start, but- were stored there as upon a switch. Such cars were intended to be taken out as an accommodation train west to Binghamton, at eleven o’clock in the forenoon. A train, No. 2, from Binghamton to Albany was, by its regular aiid advertised time, due to arrive at Oneonta every day at ten-five and leave- at ten-ten in the forenoon; and the plaintiff claims that the deceased, whose home was in Troy, N. Y., went to that depot intending to take such ten-ten train on his way home. The train which stood on track 4 arrived from Albany that morning at ten-five on track No. 2, discharged its passengers, and then backed'over onto. No. 4, and was there waiting until eleven A. m. to further proceed as the, accommodation to Binghamton above referred to.

It is a contested question between the parties whether the train No. 2 due from Binghamton at ten-five had arrived before the deceased was injured. The plaintiff claims that it did not arrive until just after deceased was killed and had been carried into the freight room of the depot. The defendant claims that it had come and gone before the deceased arrived at the' depot. A careful study of the evidence in this case convinces me that upon this question the defendant is correct, and that such train for Albany had left the station before the deceased arrived there and before the freight cats which he found obstructing the track No.T when he attempted to cross it, had been placed there. So far as the verdict of the jury must be deemed to be a finding against the defendant upon this claim it is so clearly against the great weight of evidence on that question' that it should be reversed, and in the examination of this case we must consider.it as if train No. 2 had already departed.

Concede, then, that the deceased went to this station with the intent tó take this train No. 2 for Albany, and we have substantially the following facts before us, viz;: The train from Albany had arrived at ten-five, had discharged, its passengers and been switched out of the way onto track N o. 4. The train to Albany, arriving at the same time, had gone. No other passenger train was due to come or go until eleven o’clock. As éoon as the aforesaid trains were out of the way, the freight cars, composing a train of some fifteen or twenty cars, to which the switch engine was attached, were pushed back from the west; easterly upon track-No. 1 in order to take from the west end thereof and about seven cars from the engine, three coal cars to place on Pruyn’s switch, which is a short distance fro.m the west end of the depot. That pushed the rear end of that train up so that it stood on track No. 1 opposite the whole length of the depot, and it stood there while the engine was putting the three cars taken therefrom into, said switch, and the opening of about five feet between cars in which deceased was caught seems to have occurred by reason of never having coupled together when the cars were -made into a train. It is not clear just how that opening •" '..occurred.,. ¡but iit ris blear ¡¡that .the ¡engineer.-¡and ¡cotíductor-uóf the néwitcbiengine.did.net ¡know,of its existence. ,-And.I. judge from, the evidpuce that such cars ¡had mot ¡been,amcoupled and:.tke.;.ep.eUing ■tmade-itherei.and .purposely left .by any¿eraployee :of ¡¡the ..¡company, .’árór ¡does .therea-ppear : to.- have, been ¡any¡ purpose .for- ¡which such tan .openjngi.would. have «been left. ,-.ÍN" o .passenger" train. ¡beingiexpected ■ .-by ,the::de£endamt.to: come.or.go until'eleven olclock-AAtt.,,there-.was mo necessity- -for ¡¡any one. to, pass from, the, depot,.over ítraák 1-tun-til ,-longafter -the: .three coal cars couldibe taken,outan.d.thó.:$est-of'lthát [.train- ¡entirel-yiremove'd.

".-The..deceased .arrived at. thei.depot.too. late ¡for his.train; helhad «never:, been ¡at. this-, station before,:-yet; he., passed, -directly through, .the *«waiting, ‘room.-out:onto .-the. platform without• making an y> inquiries ¡ -¡whatevenas' to where "his train was,., or as to'how or where he: could ..find, it, ¡although- .the' ticket ¡office "was before him and .open. When :he reached .the 'platform: he-foundlno -.passenger.¡train. there,,.ibút - the ..freight,train.blocked: bis view, ¡except that at-.-was -possibles to: see over the tops of such cars the, passenger cars' that, ¡stood om.track -4, -iiabove-.alludedf.to. Whether.he did pee. them.or.'moti.does'jaofeiappear. . But,-Without .making any. inquiries '¡at' all, either at :the. office ¡which - was-close-at ¡his,hand,..or-,óf any -one.about.there,¡hevátonce went "!diagonally to ¡the .-eastward., from the.¡door[through¡which ho had ■.come,:;across:the.'thirty.feet.of space.betw.eem the .'platform? and .the ..freight .ears,'.to¡the fiv.e-foot.opening and proceeded=to pass'.through .it. .¿Bust then/the.freight .engine, haying.¡got the three>;coal¡cars ¿placed- on ¡Prnyffis switch and back onto .track Ho.’! and:,coupled vorn-tq .its-traimagai-n ¡started tOi.puskiit.'éastward^past t-he.depotandvto •,some..othér ¡place. Of course the .opening-was..ate once'violently •dosed and- the; deceased was, killed. ' *

. '.Under .-such ¡circumstances -was the jury justified .-ini holding-the . defendant guilty. of ¡ any m egligence as against"the. deceased ? In my .opinion it, was not. Although there, with .the-intent., to takea/train, ¡•it.cannot,be:said--that,.-he-had a license-<even towandereutlupon Jhe .¡defendant’s-yardand to dodge between, its cársvát'¡such¡-times-and .placestas'he might ¡desire. 'Asá, matter of fact there ¡was...no .strain -to, arrive >,or- depart ¡from that -yarij in.the next, thirty minutes,-and ..the',defendant, 'TOS; not -in reason , required to .apprehend «.that.any intended passenger would "be out in such .yard -attempting to cross. any of its tracks and thus be liable to. be injured by any switching that it might find necessary, or convenient even, upon any track in such yard. Ho passenger was licensed to be out in such yard searching for the train he desired to take, and very clearly this was not a case where the deceased was required to cross any track to take his train, for there' was no train then in such yard made up and ready for him or any one else to take. Very clearly the defendant had no knowledge that the deceased was anywhere in such yard or .about to cross its tracks, or that any notice of the movement of its switch engine was necessary to be given. It cannot be said that" it owed him any such notice, and, therefore, it was guilty of no negligence in not giving it. The plaintiff’s claim that the deceased was invited by the'defendant to attempt to pass through such opening, because the opening was there and a string of passenger cars stood on track Ho. 4 which could be seen over the top of the freight cars, is, in my judgment, entirely unwarranted. It appears from the evidence that, as a fact, the defendant did not create that opening for its passengers to pass through, and that the passenger.cars on track Ho. 4, which perhaps the deceased did mistake for a train he could take, had no engine attached, and that very slight attention would indicate to any one that it was not ready to be taken. The claim that there were passengers sitting therein is clearly not sustained by the evidence.

Clearly the situation, as it presented itself to the defendant, was not one. that required it to anticipate such a misapprehension on the part of the' deceased and to give notice of the movements of its switch engine.

But beyond all this, it was the negligent conduct of the deceased himself that caused such misapprehension, if he had any, and that caused his death. He entered into that depot and "out upon that yard in utter ignorance of that locality and of the arrangement of its tracks, yet he made not.the slightest effort to ascertain regarding them. Had he inquired of the man in charge of the ticket office, who was there to give such information, he would have ascertained that it was utterly unnecessary for him to pass through such opening or to make any attempt to get across the yard and board the cars that he may have seen on track Ho. 4. The whole situation, as above detailed, would have been given him, and he would have waited in safety and taken in safety the next train that departed for Albany. •

In my opinion it is not requiring too. much of any one intending to take a train to inquire' at the office when and where lie can find it, and if he, instead of doing that, passes out into the yard, over the tracks and between the- cars in order to find out for himself, he does ’ so at his own risk. Under such circumstances the company owes him no duty other than to' do him no willful or intentional injury.

The trial court substantially charged, the jury that the first part of suclí proposition was correct, viz., that he did so at. his own . risk, .and that for his death thus occasioned the plaintiff could not recover. There does not seem to be any substantial difference as to . the deceased’s conduct being such as above, stated, arid, therefore, it' would seem .that under the charge the verdict of the, jury could no.t he Sustained. ''

For these reasons this judgment and order must be reversed on the law and the facts and a new trial granted.

All concurred; Kellogg, J., in result; Coohbane, J.; not sitting.

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