Opinion
November 15, 1911.
Charles C. Annabel, for the appellant.
Alexander S. Diven, for the respondent.
The action is to recover damages for the negligent killing of plaintiff's intestate. The defendant in conjunction with the Erie Railroad Company uses and controls several tracks and sidings in the village of Waverly. These tracks cross Fulton street, one of the principal streets of the village, at which crossing gates are maintained. Plaintiff's evidence tended to show that for some years the defendant had permitted consignees of fruit to sell the same at retail from the car in which it was shipped, standing on one of the side tracks and convenient of access from the Fulton street crossing, and that it was not unusual for a considerable number of people to congregate about the car and upon adjacent tracks for the purpose of purchasing. Two days before the accident in question a car of peaches arrived and the defendant had placed it in the desired position, and the owner by lettering on the car advertised them for sale at so much per basket. In the course of switching in the freight yard it had been necessary to move the car from time to time, but it was put back in its accustomed place. Plaintiff's intestate, learning that peaches were being offered for sale, went in company with another onto the Fulton street crossing while the gates were up, and turned up the tracks toward the side door of the fruit car for the purpose of making a purchase. The door was partially open, but it transpired that no one was in the car because the peaches had all been sold, which fact, however, the plaintiff's intestate did not know. While the plaintiff's intestate was standing in front of the partially open door of the fruit car and close to the adjacent track, a train of six or eight freight cars in process of switching was backed across the Fulton street crossing, as it was proved, without any signal by bell or whistle, at a considerable speed, knocking him down and rolling him along the track and inflicting injuries from which he subsequently died. No trainman was stationed on the front of the backing cars to give warning of their approach.
We think the learned trial court erroneously granted the defendant's motion for a nonsuit. Upon the proof presented the defendant was chargeable with knowledge that the consignee of the fruit was selling it at retail from the car in which it was shipped and that purchasers would probably be upon or close to the adjacent track. It was, therefore, called upon to exercise care in backing cars upon such track. Under the circumstances disclosed the plaintiff's intestate was not a trespasser upon the defendant's lands so as to render the defendant liable only for willful injury to him. He was on such lands by the implied license of the defendant, and it owed him the duty of reasonable care not to injure him and of reasonable warning of the approach of cars that were being switched.
Nor can it be said, as matter of law, that plaintiff's intestate was guilty of contributory negligence in standing as near the adjacent track as he did while his companion was investigating as to whether or not the peaches were still on sale.
Upon the facts proved it was for the jury to say whether or not the defendant was negligent and whether the plaintiff's intestate was guilty of contributory negligence.
The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred; KELLOGG, J., not sitting.
Judgment reversed and new trial granted, with costs to appellant to abide event.