
    Sarah Rainey, Adm'rx, Resp't, v. The New York Central & Hudson River Railroad Co., App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1893.)
    
    1. Negligence—Railboad—Violation of obdinance.
    Proof that a railroad company violated a city ordinance which required it to maintain gates at its crossings, does not, in an action for damages for the death of plaintiff’s intestate, establish a cause of action, but is evidence bearing upon the question of negligence.
    2. Same—Chabge.
    In such action it is error for the court to refuse to charge that if the fact was known to intestate» that the crossing gates were not operated after seven p. m., he was not entitled to rely, in approaching the track, for the purpose of crossing or attempting to cross, upon any protection from the gates, where no such instructions had been given in the general charge, and no allusion had been made by_ the court to the fact that the intestate had lived in the vicinity a long time and must have known within what hours the gates were operated.
    8. Same.
    In an action to recover damages for the death of plaintiff’s intestate "by the negligence of the defendant railroad company, it is error for the court to refuse to charge that, if the intestate, when "he stood at a point ten or fifteen^feet distant from the nearest rail, or at any point between that and the rail, and before he entered upon the track, could have seen the approaching train, the plaintiff cannot recover.
    4. Same—Conteibutoey.
    There was but one witness who testified to seeing the accident, and that the bell was not rung, and that he did not see or hear the train before it struck the deceased. His testimony as to his subsequent actions was incredible. There was evidence that, from where the witness or deceased stood, the train could lie seen for a long distance. Held, that the burden of showing a want of contributory negligence was not sustained.
    
      Appeal from a judgment entered, on a'Verdict, and from an order denying a motion for a new trial made on the minutes.
    Wales F. Severance, for resp't; D. W. Tears, for app'lt.
   Follett, J.

This action was to recover sustained by the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant’s employes in the management of a train when passing a highway crossing.

In the twenty-third or twenty-fourth" ward of the city of New York, the defendant’s railroad crosses at grade a highway known as the Spuyten Duyvil road, and the crossing is called the Spuyten Duyvil crossing. At this place the railroad consists of two tracks, of the gauge of four feet and seven-tenths of a foot. The two tracks are eight feet and one-tentli of a foot apart, making the distance between the outermost rails of the track seventeen feet and a half. The highway extends along the westerly side of the railroad for some considerable distance, then crosses it, and extends along the easterly side of the railroad. The next crossing towards New York city is Eiverdale avenue crossing, which is 1,470 feet northerly of Spuyten Duyvil crossing. The railroad above and below Spuyten Duyvil crossing is very crooked, so that trains bound for New York run nearly north for some little distance. It is asserted on the part of the plaintiff that her intestate, John H. Eainey, was struck at this crossing, between eight and nine o’clock in the evening of January 4, 1892, by a New York bound train. About nine o’clock of that evening he was found lying, with his skull fractured, about 150 feet north of the Spuyten Duyvil crossing, on the east side of the railroad, near a fence. He was lying on his back, with his head towards the crossing last mentioned, and with his feet towards Kingsbridge. Ho was unconscious, and died within two days, without regaining consciousness.

The negligence sought to be established on the trial consisted of two omissions on the part of the defendant. (1) Neglecting to comply with an ordinance of the city of New York requiring the defendant to maintain gates on both sides of its grade crossings, and to attend them at all times when trains were passing, and close them at least one minute before a locomotive passed over the crossing. (2) Neglecting to ring the locomotive bell on approaching the crossing.

It was proved, and not disputed, that defendant maintained gates at this crossing, which were opened and closed as required between the hours of 7 o’clock in the morning and 7 o’clock in the afternoon, but that they were left open, without the presence of gate-men, between the hours of 7 o’clock in the evening and 7 o’clock in the morning.

Proof of the violation of a city ordinance does not establish a cause of action against the violator, but it is evidence bearing upon the question of negligence. McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y., 522; Knupfle v. Knickerbocker Ice Co., 84 id., 488; Moore v. Gadsden, 93 id., 12; Connolly v. Knickerbocker Ice Co., 114 id., 104; 22 St. Rep., 675; McRickard v. Flint, 114 N. Y., 222; 23 St. Rep., 100.

The evidence in the case at bar simply shows a violation of the ordinance of the city, but there is no evidence that the trains were run at an unusual rate of speed, that the vicinity was thickly inhabited, or that the highway crossing was much used during the night-time. The fact that two of the trains were one minute late is not important, and the evidence is quite conclusive that there was a clear view of trains approaching from either direction for six or seven hundred feet. The evidence in the record is not sufficient to sustain a judgment on the first ground of negligence above stated.

Only one witness, Robert McGregor, testified to seeing the accident. He and Rainey had been neighbors for several years. He testified that about four or five o’clock in the afternoon of January 24, he went to Rainey’s house, stayed awhile, and they then went out to walk, and entered McArdle’s saloon, which is about two hundred yards from the crossing, on the west side of the railroad, the decedent’s house being on the east side thereof, and within a thousand feet of the crossing. The witness said he left Rainey at the saloon, but seems quite uncertain as to the tima He testified that his house was about ten minutes walk away, and that he reached his home at six o’clock, or eight or nine o’clock. He says that he removed part of his clothing and lay on a bed until about eight o’clock, when he went out by appointment to meet Rainey. He says that the night was dark; that he went down to the crossing on the east side of the railroad, and was about to cross to the west side when he saw Rainey coming towards him from the west. That he, the witness, stood about three or four feet from the east rail of the east track and that Rainey was about thirty feet away on the west side of the track, which places him about ten feet west of the outer rail of the west track. Trains bound for New York run on the west track. The witness testified that Rainey, when near the track, stopped and looked both ways, started to cross, and just as he had passed the east rail of the west track a New York bound train struck him—“ that he was whipped out of my sight. ” The witness testified : “I did not hear any bell rung on the engine when it went by or as it approached the crossing. My hearing is pretty fair. There was no warning whatever given of the approach of that train that I heard. The crossing was not guarded by anybody at the time of the passage of that train. There was no watchman or gateman there.”

This was the only evidence offered to sustain the second alleged ground of negligence above stated. The witness does not attempt to identify the train which caused the injury. Defendant’s telegraphic operator, who was stationed at that time in the Spuyten Duyvil tower, testified that the only trains that passed over the road bound for New York between eight and nine in the evening of January 24 were Ho. 222, which passed at 8:21, one minute late; Ho. 6, which passed at 8:30, one minute late, and Ho. 30, which passed at 8:58.

The conductor and fireman of Ho, 222 testified that this train did not strike any one, to their knowledge, and the fireman testified that the bell was rung all the way between Spuyten Buy vil station and Kingsbridge station, and while passing the crossing. The conductor, engineer and fireman of No. 6 testified that their train did not strike any one, to their knowledge, and the engineer and fireman testified that the bell was rung as they approached and passed the crossing. The conductor, engineer and fireman of No. 30 testified that their train did not strike any one, to their knowledge, on that trip, and the engineer and fireman testified that the bell was rung as they approached and passed the crossing.

The accident happened on the 24th of January, 1892, and the trial was had November 29 of the same year. Thus stood the evidence bearing upon the second alleged ground of negligence.

“As against positive affirmative evidence of credible witnesses of the ringing of a bell, or the sounding of a whistle, there must he something more than the testimony of one or more that they did not hear it. It must appear that their attention was directed to the fact at the time.’’ Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y., 133; McKeever v. N. Y. C. & H. R. R. R. Co., 88 id., 667; Stitt v. Huidekopers, 17 Wall., 384; Whart. Ev., §415.

The witness McGregor, who testified that he did not hear the bell ring, stood on the crossing within three or four feet of the track, but his attention was not drawn to the approaching train by its headlight or by its noise. His testimony, under such circumstances, that he did not hear a bell, is entitled to no weight. Section 7 of chapter 282, Laws 1854, which provides that a bell shall be rung or a whistle sounded on locomotives for at least eighty rods before crossing a highway or street, and makes railroad corporations liable for all damages sustained by any person by reason of neglecting this duty, was repealed by chapter 593, Laws 1886. Lewis v. N. Y., L. E. & W. R. R. Co., 123 N. Y., 496; 34 St. Rep., 373; Kane v. N. Y., N. H. & H. R. R. Co., 132 N. Y., 160; 43 St. Rep., 494. The evidence of this witness is, to say the least, extraordinary. He and Rainey were neighbors and friends, and had lived near each other for several years. He testified that he saw the train strike Rainey and carry him away, and without going to look for him he went home, not by the usual route, but by a circuitous one, took ofí a part of his clothing, and went to bed ; that he might have slept, and while in bed his son informed him that Rainey had met with an accident; that he then went to Rainey’s house, between ten and eleven o’clock, and saw him. We will give the witness’ explanation of his most singular conduct in his own language:

“ The reason that I done that was that I got frightened. I thought the man was all cut up; I was afraid. Not only that, but Í was afraid of meeting anybody by going the regular road. To avoid meeting any person, or seeing any one, I passed over tiie track and went home the back way.”

This is so contrary to the usual conduct of men that it is incredible. The evidence of the absence of contributory negligence on the part of the decedent is all furnished by this witness. He testified that as he stood on one side of the railroad, and Eainey on the other, that “ he (Eainey) looked first towards Spuyten Day vil, I think he did; I am not sure I saw him stand and look up and down the track; I think he looked first towards Spuyten Duyvil and then turned his head towards Forty-second street or Eiverdale crossing. At that time I did not see the train; I am quite sure of it; I neither saw nor heard it at that time.”

Upon the important question of the freedom of the plaintiff’s intestate from contributory negligence, the senses of the witness were all alert. He brought the case within the decisions, but he was not sufficiently attentive to see the headlight or hear the noise of the approaching train. Could he or Euinejr, had they been attentive, seen or heard the train ? The witness testified that, standing where Eainey stood, the approaching train could have, in daylight, been seen not more than one hundred or one hundred and fifty yards, but if you were standing on the other side (where the witness stood) you couldn’t see it fifty yards. At another place in the record the witness testified that he might have heard the train when it was within one or two hundred feet from him; The witness does not claim to have made any test as to the distance a train could be seen from the crossing. A map is in evidence which shows that the track is substantially straight for some distance on both sides of the crossing. Haviland, an engineer sworn for the defendant, testified, that standing on the crossing ten or fifteen feet west of the westerly rail, that a train could be seen 750 feet away, and that, standing thirty-four west of the rail, an approaching train could be seen 597 feet from the crossing. That the nearest building was 350 feet away from the crossing. Curtis, another engineer, testified to the same state of facts. Under the evidence, as it appears in the record, the plaintiff failed to sustain the burden which was upon her, of showing that her intestate did not contribute to the accident. It may be observed that the decedent was thirty-eight years old, and it was not shown that his eyesight or hearing had been impaired. Upon the evidence as it stood the court erred in refusing to dismiss the complaint.

The Court was asked to charge : *‘I ask your honor to charge that if John Eainey, when he stood at a point ten or fifteen feet distant from the nearest rail, or at any point between that and the rail, and before he entered upon the track, could have seen the approaching train, the plaintiff cannot recover.”

The Court: “I refuse to charge that, because I think that calls for an expression of opinion on the part of the court as to a fact. I charge the jury that that is a circumstance which they may take into consideration in making up their minds as to whether John Eainey was or was not guilty of contributory negligence.”

Defendant’s counsel: “ I except to your honor’s refusal to charge as requested, and to the qualification.”

Defendant’s counsel: “ I ask your honor to charge that if the fact was known to John Eainey that the gates were not operated after seven p. M., he was not entitled to relv, in approaching the track, for the purpose of crossing or attempting to cross, upon any protection from the gates.”

The Court: I refuse to charge further upon that subject than I have already charged.”

“Defendant excepts.”

Both requests should have been granted. There might be circumstances which would make it proper to refuse the first request, but, under the evidence in this case, it was not. On the second proposition, the court had given no instructions to the jury in its charge. No allusion had been made to the fact that Bainey had lived at Spuyten Duyvil for nine years, and in the Biley house for eight months, and must or might have known within what hours the gates were operated.

The judgment and order should be reversed on the exceptions and on the facts, and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J.

I concur. There is no but that McGregor did not see the accident, and there is, therefore, no proof in the case that the deceased was free from contributive negligence.

O'Brien, J.

I concur in the of the refusals to charge pointed out in the opinion. Upon the case, I think the question of plaintiff’s right to recover was properly submitted, upon conflicting evidence, to the jury, and were it not for the other errors pointed out, I would favor an affirmance of the j udgment.  