Opinion
May Term, 1899.
Judgment and order denying motion for new trial reversed on the facts and a new trial granted, costs to abide the event. Order granting extra allowance vacated.
About ten o'clock in the evening of December 24, 1897, a two-horse sleigh, in which the plaintiff and others were riding in the village of St. Johnsville on Bridge street where it crosses the tracks of the defendant, was struck by a passenger train of the defendant going west. In the collision the plaintiff received personal injuries, for which she seeks in this action to recover damages upon the ground that the accident and consequent injury were caused by the negligence of the defendant in not giving proper signals of the approach of its train. It was the duty of the defendant to use reasonable care in the operation of its train, having in view the circumstances of the case and the danger to be reasonably apprehended. It was bound to give reasonable warning of its approach to the crossing. ( Dyer v. Erie Railway Co., 71 N.Y. 228; Weber v. N.Y.C. H.R.R.R. Co., 58 id. 451; Vandewater v. N.Y. N.E.R.R. Co., 135 id. 583, 588; Hickey v. N.Y. Central H.R.R.R. Co., 8 App. Div. 125; Bailey v. Jourdan, 18 id. 387.) Upon this subject at the trial the main dispute was over the question whether the whistle was blown and the bell rung. The court charged the jury in substance that, if they believed the whistle was blown, as appeared by the evidence on the part of the defendant, and that the bell was rung, then the plaintiff could not recover. The jury by their verdict in effect found that the whistle was not blown and the bell not rung. The question is whether the evidence was sufficient to sustain this finding. We must assume in the consideration of this question that the rule as to the liability of the defendant was correctly stated by the trial judge. The plaintiff and the driver of the team, together with several others in the sleigh, testified that as they approached the crossing they were listening for signals, but heard no whistle or bell. One other witness was called by the plaintiff on this subject, who testified that he was at the station and looking at the train as it came up and heard no whistle blow or bell ring. Upon his cross-examination he testified that he was inside the depot looking out of the window, was paying no attention for signals and could not say whether or not the train blew the whistle or rang the bell. So that practically the evidence on this subject on the part of the plaintiff is confined to the parties in the sleigh. There were nine or ten persons in the sleigh. The team as it came down the street was trotting until within ten or twenty feet of the crossing when it slowed down to a walk. There were two bells on the team, attached to the neckyoke of the horses. There was a wind from the west. There were freight cars on one or more of the tracks that obstructed the view of those coming along the street and crossing. On the part of the defendant, the engineer and fireman on the engine testified to the blowing of the whistle and ringing of the bell. A number of other employees of defendant, who were in a position to know, testified to the blowing of the whistle. Besides these, two witnesses were called who were not connected with the defendant. One of these was near the crossing as the plaintiff's team came toward it, and he testifies to hearing the whistle and the bell. The other witness lived on Bridge street a short distance above the crossing and testifies to seeing the plaintiff's team go by her house and hearing shortly afterwards the blowing of the whistle. The train was a fast one and not scheduled to stop at St. Johnsville. Assuming that the plaintiff and her party did not hear the whistle or the bell, it does not necessarily follow that the whistle was not blown or the bell rung. The train was coming against the wind, and the noise from the bells on the horses would interfere somewhat with the hearing of other sounds, especially if, as was probably the case, the whistle was blown while the horses were trotting. This being the situation, the fact that the plaintiff and her party did not hear the whistle or bell was not, we think, sufficient to overcome or outweigh the positive evidence on the subject on the part of the defendant. The jury were, therefore, not warranted in finding the proposition of fact which under the charge must be deemed to have been the basis of the verdict, and a new trial must be granted. The appeal from the order granting the extra allowance need not be considered, as that order must fall with the judgment. All concurred, except Putnam, J., not sitting.