Parsons v. New York Cent. & H.R.R. Co.

• Decision Date: 16 April 1889
• Citation: 21 N.E. 145,113 N.Y. 355
• Court: New York Court of Appeals Court of Appeals
• Parties: PARSONS v. NEW YORK CENT. & H. R. R. CO.

113 N.Y. 355

21 N.E. 145

PARSONS

v.NEW YORK CENT. & H. R. R. CO.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from supreme court, general term, Fifth department.

Action by Martha J. Parsons, executrix of Kirk P. Parsons, against the New York Central & Hudson River Railroad Company, for negligently causing the death of plaintiff's testator. A judgment for plaintiff was affirmed by the general term, and defendant appeals.

George C. Greene, for appellant.

Charles B. Wheeler, for respondent.

RUGER, C. J.

The evidence in the case was, on some points, conflicting, but the jury were authorized to find, and, upon the defendant's appeal, we must presume that they found the facts in conformity with the plaintiff's proof. By this it appeared that the plaintiff's testator was run over and killed at the Ferry-Street station in the city of Buffalo, by the engine of a freight train belonging to the defendant, moving southerly at the rate of from 20 to 30 miles an hour. He was a passenger on a train going northerly from the Exchange-Street station, Buffalo, to La Salle and beyond, and had traveled three miles of the distance when he reached the Ferry-Street station, where the train was accustomed to stop for the purpose of taking on and letting off passengers. As the passenger train reached the station-house, after it had been called by the brakeman, and while it was going slowly, but had not yet entirely stopped, the deceased stepped down from the second car, upon its westerly side, upon a plank walk or platform, and proceeded along by the side of the moving train for some 40 or 50 feet, when he attempted to cross over the westerly track. Before this the passenger train had entirely stopped. When he reached a point about 10 feet from the passenger train, and being then between the rails of the westerly track, he was struck by the engine of the freight train, which was backing down in a rapid manner. The whole transaction occurred in front of the station-house, and within the station-yard, upon ground where passengers were accustomed to pass and repass in going from and coming to the trains. The rules of the defendant required freight trains to approach stations slowly, and to stop before reaching stations at which a passenger train is landing or receiving passengers. The freight train came from the north, and at the distance of about 300 feet from the station was visible, although partially concealed from the view of those standing at the station by a curve in the road, and also by trusses upon a bridge over Ferry street, running immediately north of the station grounds, which trains going south were obliged to cross before reaching the station. The deceased was, when struck, about 20 feet south of the bridge. He was seen walking quite rapidly to the north in the direction of the approaching train, when he turned and started to go across the track, and, as he saw the train, attempted to jump, but failed to prevent a collision, and was struck while in the act of jumping to avoid it. It did not appear for what purpose the deceased was going across the westerly track, but it was stated that he sometimes got off and communicated with relatives or friends who lived next the station-yard on the west side, as he passed up the road. As the deceased walked along the track he was necessarily looking in the direction from which the freight train was approaching, but no positive proof was given that he looked towards it immediately before he was struck, and it is not probable that he could have seen it if he had looked when he first alighted, or for some seconds thereafter. Not to exceed 10 seconds elapsed between the time when he alighted from the train and that when he was struck, and during that time the engineer of the passenger train was exhausting its steam, making a loud noise. The freight train was running probably at the rate of 40 feet a second, and when the deceased first alighted was probably beyond the line of his vision.

We are of the opinion that the case was in all of its respects one for the jury. The point made by the appellant, that there was a variance between the cause of action proved and that laid in the complaint, is not well taken. The complaint stated all of the facts necessary to maintain the action, and complied with the requirements of the Code in that respect. Evidence was given tending to support the allegations of the complaint, and it was for the jury to find whether they had been proved or not. The contention that the negligence of the defendant, as alleged, consisted only of its omission to perform the duty which it owed to the deceased as a passenger, is founded upon a misconstruction of the language of the complaint. We think it immaterial whether the deceased, when he alighted from the passenger train, ceased to be a passenger or not. He was certainly neither a wrong-doer nor trespasser by so doing. He might thereby have subjected himself to increased risks, for which he would have no redress against the railroad company; but, if he should be afterwards killed by the gross negligence of the company, without fault on his part, the company would be liable. This was the case stated by the complaint.

The defendant also claims that it was not negligent in running its freight train through the station at a high rate of speed while a passenger train was there engaged in taking on and landing passengers. This claim is mainly based upon evidence that the engineer in charge was temporarily disabled from controlling his engine by an accident received from the lever, which slipped from its position after being reversed, and struck him a violent blow. The argument is that the engineer had performed his whole duty in respect to stopping the train, by reversing the lever and shutting off steam. Some evidence was given for the defendant by its employés that they were not cognizant of any means of retaining the lever in its place after being reversed, except what were in use on this engine. Other experts, however, gave evidence tending to show that such an accident could not occur if the lever was...