Donnelly v. Brooklyn City R. Co.

Decision Date13 March 1888
Citation109 N.Y. 16,15 N.E. 733
PartiesDONNELLY v. BROOKLYN CITY R. CO.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action brought by Edward Donnelly against the Brooklyn City Railroad Company, to recover damages for injuries sustained by plaintiff colliding with defendant's engine while driving on the company's track. Judgment for plaintiff, and defendant appeals.

Samuel D. Morris, for appellant.

Chas. J. Patterson, for respondent.

GRAY, J.

The facts proved on the trial of this action did not warrant the submission of the case to the jury. It was shown on the plaintiff's part that he was chargeable with neglect to act in such manner as to avoid the danger. The plaintiff, with one McNally, had driven in from Fort Hamilton, where they were employed, to the city of Brooklyn, in the evening, in a wagon drawn by one horse, with a load of fish for market. They set out to return about midnight, and took the route of an avenue on which were two tracks of the defendant, upon which were run, either way, trains of cars drawn by dummy engines. These tracks were laid in the middle of the avenue, and on either side was an ordinary dirt road of sufficient width for the passage of vehicles. McNally was driving, and plaintiff was sitting by his side. They had been on the right-hand railroad track, when, hearing a wagon approaching, which they judged to be loaded, they turned to the left hand, and drove upon the other track used by trains going towards Brooklyn. They had not been long there, when they heard and saw coming towards them in the distance a dummy engine. We give the plaintiff's description of how they knew of the approach of the engine. On his direct examination he was asked, after stating how they came to take the other track, and then endeavored to get back on their former track: Question. How far did he [referring to McNally] ‘go that way, trying to pull himself out,-to the right? Answer. He must have gond somewhere, I think, about fifty feet nearly; didn't notice anything then; I noticed the railroad car when it came pretty near. Q. What did you notice? A. The light of the dummy, the torchlight upon the boiler; whatever you call it. Q. Was your attention attracted to the dummy by hearing it or seeing it? A. I heard the noise, then watched and saw the light behind the boiler; I first heard the noise. Q. Where did you hear the noise about? A. Coming over a gutter,-the iron grating in the road,-an iron bridge that covers an opening in the road; that iron bridge is seventy-five feet from where I was when I first heard it. When I heard that noise I did nothing; I looked, and saw a light behind the boiler.’ Plaintiff further testified that he did not see the headlight until it was about 50 feet off, and that it was dim. He said: ‘When the train was going over that 75 feet I did nothing except to sit on the wagon and shout twice to the engineer to hold up.’ Plaintiff thought that the train was going about five miles an hour; though how, upon so dark a night, and as he describes the events, he could from any possible or reliable opinion as to the speed of the train, it is difficult to comprehend. The horse and engine collided, the horse was killed, and plaintiff was thrown out, and received his injuries. The force of the collision was such as to cause the shaft of the wagon to penetrate the engine's water tank. Plaintiff further, upon his counsel's examination, testified, after saying that no whistle was blown nor bell rung on the train: Question. When did you listen for it? Answer. The whole way to the city line. I was listening, because I was expecting to meet it somewhere about there,-that part.’ He also says, when he heard the other wagon coming he told McNally he had ‘better turn out;’ but he does not appear to have made any objection to his turning upon the track on which he tells us he was expecting to meet’ trains. He ‘was acquainted with that avenue; had been in the habit of going along Third avenue a good many years.’ He ‘used to drive a car, and knew which track the cars run on in coming to Brooklyn, and was expecting a train along there.’

Plaintiff's narrative of what happened, and from which we have extracted the foregoing facts, was corroborated by McNally. From his evidence it appears that he turned out for the wagon, because, from the sound, he judged it to be loaded; that they proceeded on the other road between 100 and 150 feet before his attention was attracted to any engine; that he had gone so far on the left-hand track because his wheels had got jammed. McNally had been driving over the avenue several times a month for 15 years. He says, ‘I knew the train was coming, but I did not expect her at that portion,-I did not expect to meet the train there;’ and he saw the dummy before he saw any light. They were on a down grade, and turned out for the approaching wagon, because it was usual at that portion of the route to give the right of way to incoming wagons. He excuse for not pulling out upon the side of the road was that it was a sandy road, and the boughs of the trees would interfere...

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