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

• Decision Date: 24 February 1891
• Parties: TUCKER v. NEW YORK CENT. & H. R. R. Co.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 308

26 N.E. 916

TUCKER

v.NEW YORK CENT. & H. R. R. Co.

Court of Appeals of New York,

Second Division.

Feb. 24, 1891.

Appeal from judgment of the general term of the superior court of the city of Buffalo, entered upon an order made November 6, 1890, which affirmed a judgment in favor of the plaintiff for $2,400.75, entered upon a verdict, and affirmed an order denying a motion for a new trial. This action was brought to recover damages for alleged negligence causing the death of plaintiff's intestate. The plaintiff's intestate, a boy 12 years of age, while crossing Smith street in the city of Buffalo, on the 27th day of December, 1885, was run over by defendant's locomotive and killed. It appears that decedent and his brother were passing southerly down Smith street, which was crossed, between Oneida and Bristol streets, by four railroad tracks belonging to the defendant corporation, by three tracks of the West Shore Railroad, and two tracks of the Lake Shore & Michigan Southern Railroad. They were on the westerly walk of the street, and, after passing over the West Shore tracks, came to a switch track belonging to the defendant. The switch track on each side of Smith street had cars standing upon it, but a passage-way was open on Smith street, to enable teams and individuals to cross. The plaintiff's intestate was carrying upon his shoulder a bag partially filled. When he reached the center of the switch track he changed the bag from one shoulder to the other, resting it on the bumper of the car as he did so. While changing the bag he faced in the direction of the locomotive, which was then backing down at a high rate of speed. Had he looked he could have seen down the track on which this locomotive was coming a distance of 186 feet. From that point to the center of the track where he was struck and killed was a distance of 14 feet. To the north rail of the track it was 11 feet, and between the southerly rail of the switch track and such north rail it was 8 feet and 5 inches. After changing the bag he started on, his brother being then about 50 feet ahead of him. After taking one step there was an unobstructed view down the track on which the locomotive was coming for two streets, and before reaching the north rail it was possible to see along it for the distance of nearly a mile. When he had reached about the center of the track he was struck and killed. The plaintiff introduced evidence tending to show that the flagman in charge of this crossing was not out when the plaintiff's intestate passed, and that the bell was not rung or the whistle of the engine blown until the moment when the accident occurred; but, as the question of contributory negligence is alone considered in the opinion, further facts as to that branch of the case are not given. At the close of the evidence defendant's counsel asked the court to direct a verdict for defendant, which was denied. Further facts appear in the opinion.

BRADLEY and VANN, JJ., dissenting.

James Fraser Gluck, for appellant.

Henry W. Hill, for respondent.

PARKER, J., ( after stating the facts as above.)

Whether the complaint should have been dismissed after the evidence was all in, on the ground that the negligence of the plaintiff's intestate contributed to the accident, presents the only question which we shall discuss on this review. In its disposition we shall consider first whether, assuming the intestate to have been sui juris, the evidence adduced authorized the jury to find that plaintiff's intestate was free from contributory negligence. If not, whether the fact that the intestate was only a little over 12 years of age, considered in connection with the other circumstances proven, could be permitted to effect a different result. The plaintiff, in order to recover for the damages sustained by the killing of his intestate, which was occasioned by his being run over and killed by a locomotive on the defendant's road while crossing its tracks on Smith street in the city of Buffalo, was burdened with the necessity of proving- First, that the defendant was guilty of negligence; and, second, that he was free from all fault contributing to that result. The law requires a traveler before crossing a railroad track on a public highway to look and listen for the approach of trains. If he omits to do so, and suffers injury while crossing, he cannot recover because of such omission. That which it is his duty to do he, or, in the case of death, his representative, must in an action to recover for damages sustained prove was done, or at least must prove facts from which the inference can reasonably be drawn that he performed his duty in that respect. It will not be presumed that he looked; it must be proven. The plaintiff attempted to meet this requirement by the evidence of a witness, who testified that before the intestate crossed the track, in the doing of which he was struck by the locomotive and killed, he stopped in the center of the switch track 11 feet from the north rail of the track upon which the locomotive was running, and shifted the bag which he was carrying from one shoulder to the other, resting it upon the bumper of a car standing on the track as he did so; and that at this time his face was turned in the direction of the approaching engine. He then passed on in a southerly direction for the distance of about 14 feet, when he was struck. The witness further testified that after changing the bag from one shoulder to the other he did not again turn his head to the left, as it would have been necessary for him to do in order to see the approaching locomotive. It is urged that, inasmuch as it appears that his face was turned in the direction from whence the locomotive came, a jury could be permitted to find that he did look, and thus observed that measure of care and caution which the situation imposed. We are unable to agree with that contention, for it appears that from the place where he was standing it was possible to see along the track a distance of 186 feet; that when he reached the south rail of the switch track, a distance of 8 feet and 5 inches from the north rail of the track upon which the locomotive was running, he could see for two streets away; and that, before reaching such rail, the view...