Wiwirowski v. Lake Shore & M.S. Ry. Co.

• Decision Date: 10 March 1891
• Citation: 124 N.Y. 420,26 N.E. 1023
• Parties: WIWIROWSKI v. LAKE SHORE & M. S. RY. CO.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 420

26 N.E. 1023

WIWIROWSKI

v.LAKE SHORE & M. S. RY. CO.

Court of Appeals of New York,

Second Division.

March 10, 1891.

Appeal from supreme court, general term, fifth department.

James Fraser Gluck, for appellant.

Frank R. Perkins, for respondent.

HAIGHT, J.

On the evening of October 27, 1888, at about half past 6 or 7 o'clock, the plaintiff, with her husband, and a neighbor named Jacobowski, were walking across the defendant's tracks along the southerly sidewalk of Oneida street in the city of Buffalo. They first approached the tracks of the New York Central Railroad, three in number, which they passed in safety. They then entered upon the defendant's west-bound track, and while attempting to cross that the two men were struck by the tender of a locomotive and killed. The locomotive was backing into the city from East Buffalo, drawing a caboose. On the first of the Central tracks some cars were standing, which came to within about 20 feet of Oneida street. A passenger train had just passed east on the Central tracks, the rear lights of which were at Montgomery street, the next street east of Oneida street, as the defendant's engine passed that street. At the time of the accident it was dark, and there was a conflict in the evidence as to whether the usual signals were given, making the question of the defendant's negligence one for the jury.

The only question which we are called upon to consider pertains to the contributory negligence of the plaintiff's intestate. Upon this branch of the case the testimony given in support of the verdict was by the plaintiff, and is as follows: ‘The two men went ahead of me, and I went behind them. When we came to the railroad tracks I did not see any car, or hear any noise. A car came along, and killed my husband and the other man with him, and then I fell down, and don't know what after that happened. We were on the sidewalk on Oneida street when the car hit them. I was about three feet behind the men at the time. I did not see any flagman, or hear any one call to me, nor hear any bell or whistle, or see any light. I saw the men after the car had passed over them. It was dark at that time.’ On her cross-examination she testified that ‘we went along quiet. We were not talking. Everything was quiet all around there; all the way in. Along-side the tracks were some cars; on which one of the tracks I can't exactly tell. My best recollection is they were on the first track we passed, about twenty feet back from Oneida street, and it was on the fourth track after we passed the first track that my husband was killed. We walked along on this space, and down on the other side of these cars. We came right down across the tracks, and my husband was struck on the fourth track.’ After the plaintiff had rested, the defendant's counsel reguested the court to direct a verdict upon the ground that the plaintiff had failed to make out a cause of action. The court reserved its decision and permitted the plaintiff to be again recalled to give further testimony. She was then asked how she knew that there were no lights, and answered that she noticed that there were none; and, when asked how did she notice it, answered: ‘I looked at one side and the other,-looked each way. I saw no light, or any car. I didn't see any car coming.’ This was all of the evidence given on behalf of the plaintiff bearing upon the question. It will be observed that she says that she looked ‘when we came to the railroad tracks.’ From this we understand that she looked as they came to the first of the Central tracks. The defendant's track upon which her husband was killed was the fourth track, a distance of about 50 feet from the first of the Central tracks. It does not appear that she looked or listened after this time, but followed along about three feet behind her husband and his companion until they were struck. At the place of the accident the tracks of the defendant were straight for...