Opinion
December Term, 1897.
Motion for a new trial denied and judgment ordered for the defendant, with costs. All concurred, except Ward and Green, JJ., dissenting. —
This action is for injuries to the plaintiff received at the University avenue crossing of the New York Central and Hudson River Railroad Company, in Rochester, N.Y., November 29, 1896. Upon the trial the plaintiff was nonsuited and the plaintiff's exceptions were ordered to be heard in the first instance at this court. At this crossing there were fifteen tracks — tracks 1, 2, 3 and 4, numbering from the south to the north, and the other tracks were sidings and switches. The width of this crossing was about three hundred feet. The plaintiff and one Johnson French, his brother-in-law, had occasion to go over this crossing about three o'clock P.M. French lagged behind for some purpose and the plaintiff proceeded nearly across the crossing when he was stopped by a train of defendant's with open flat cars that were passing up and down on a siding that was the next track to track 1 and south of it. When the plaintiff started to cross the track he saw no obstruction to his passage. He saw a train facing eastward that had stopped at the coal house above or west, on track 1, which was a cattle train of about thirty cars that had stopped for coal. The plaintiff proceeded until he found himself in the space between track 1 and the next track south of it, which space is seven and two-tenths feet wide. He stood there waiting for the track to be cleared of the train in front of him. French came on after him, and French discovered that the train at the coal house (the cattle train) had started east. He shouted to the plaintiff to warn him of the approach of that train, which the plaintiff did not hear. Both French and the plaintiff state that they did not hear the whistle blown, bell rung or any signal indicating the approach of the cattle train. French states, however, that he heard the rumble of the cars, which attracted his attention. The plaintiff did not hear the approach of the train, owing doubtless to the rumble of the train that was approaching in front of him. But as the cattle train approached the crossing, and got very near to the plaintiff, going at a rate of from fifteen to twenty miles per hour, the plaintiff discovered the approach of that train, but it was too late for him to run back over track 1 and escape. He was, consequently, hemmed in between track 1 and the track south of it, over which the flat car was passing. French had come and stood beside the plaintiff, and the two stood in the center of the space between the two passing trains, which space was from three feet six inches to four feet two inches between the jutting cars or platforms of the passing trains. It appeared that the cars of each train would jut over the rails about eighteen to twenty inches. It is not probable that any accident would have happened to the plaintiff, as he was a man experienced in the use of cars, and it does not appear that he was nervous or excited, but for this singular circumstance: After all but about six of the cattle cars had passed by the plaintiff eastward and a number of the cars of the other train had passed by them westward, French, who was a shorter man than the plaintiff, was hit by an arm, stick or substance that stuck out beyond the sides of the flat car train some eighteen inches and passed by him, just hitting him, but struck the plaintiff, knocked him down, threw him against the cattle train and severely injured him. It appeared by the map in the case that the space between track 1 and the track next south of it did not broaden out to the west to any perceptible extent for some distance. It was a clear day and there was no difficulty in the plaintiff seeing the train on track 1 had he been watching it. His attention seems to have been directed to the passing train in front, and hearing no signal of the approach of the other train, he found himself hemmed in in this position as above stated. There was ample evidence of the defendant's negligence to have gone to the jury. The cattle train should not have started over this crossing without having given some signal, and it was negligence to have this arm or stick sticking out from the other train eighteen inches when people were watching there to, get across that crossing, but the defendant's counsel claims, especially from the evidence above quoted, that the plaintiff was guilty of contributory negligence, as a matter of law, and it was not a question for the jury. This was a question for the jury. The plaintiff had a right to go across the tracks at this crossing, as he had no notice of the approach of the cattle train and as the last he saw of it it was standing still; and as his attention was diverted by the moving train in front of him, it was for the jury to say, under all the circumstances, whether his negligence contributed to the injury. If he had discovered this train in time, he might have passed to the west to a broader space, but it was right upon him when he discovered it. His companion, French, had taken a position there for safety. He knew that if he stood in the center between these tracks, there was space enough so that he would be safe, and it is calculated that this space is sufficient for railroad employees and other people to stand between passing trains. While the space was narrow between the two trains, there was no danger if the trains were properly equipped. He had no reason to expect that this arm would stick out and interfere with his safety. The proof is that the arm did cause the mischief, and upon this motion for a new trial we must give the plaintiff's testimony the most favorable view it will bear to him. This was a dangerous crossing, and I think, taking all the circumstances of the case, questions of the negligence of both the plaintiff and the defendant were for the jury. The plaintiff's exceptions should be sustained upon the ground that the question of the defendant's negligence, and the plaintiff's negligence, were for the jury, and that a new trial should be granted, with costs to the appellant to abide the event. Green, J., concurred.