Getman v. Delaware, L.&W.R. Co.
| Decision Date | 27 February 1900 |
| Parties | GETMAN et al. v. DELAWARE, L. & W. R. CO. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, appellate division, Fourth department.
Action by Norman Getman and others, as administrators, etc., of John A. Shoemaker, deceased, against the Delaware, Lackawanna & Western Railroad Company. From a judgment of the appellate division (56 N. Y. Supp. 1108) affirming a judgment in favor of plaintiffs, defendant appeals. Reversed.
William Kernan, for appellant.
A. B. Steele, for respondents.
The plaintiffs' intestate, John A. Shoemaker, on the 26th day of August, 1896, at about 7 o'clock in the evening, but while it was still broad daylight, in attempting to cross the single track of the defendant's main line of railroad near its station at South Columbia, Herkimer county, was struck by defendant's fast passenger train and killed. In view of the verdict in favor of the plaintiffs, and the affirmance by the appellate division of the judgment entered thereon the appeal brings before us but the single question whether, upon the undisputed evidence touching the intestate's action upon that occasion, it was error for the trial court to permit the jury to find that the intestate was free from negligence contributing to his own death.
This situation is presented by the uncontradicted evidence. The plaintiffs' intestate, Shoemaker, was a farmer, 52 years of age, in good health, and entirely familiar with this crossing. The crossing was formed by a single track of the defendant's main line of railroad, running northerly and southerly over the highway at nearly right angles. Shoemaker was seated upon a milk can in an open wagon drawn by a single horse, old and slow, which he was driving. His horse was either walking or slowly jogging along. As he was nearing the crossing the defendant's passenger train was approaching it from the north at a speed of from 40 to 50 miles an hour. The defendant's passenger and freight station was also to the north of him, the end next to him being about 30 feet from his right hand. This station was 76 feet long and 20 feet wide, parallel to the main track; its front side 15 1/2 feet distant from the rail next to it. A bay window projected 3 1/2 feet from about the middle of the front. We must assume that without fault of his own the intestate did not see or hear the approaching train until he had nearly passed the south end of the station. He was warned of his danger by the shouts of a man and boy, but we must assume he did not hear them. When the head of his horse was within 6 feet of the rail next to him he was seen to look towards the coming train, which, from his position, looking past the corner of the station and the projecting bay window, he could then see rapidly approaching, probably about 200 feet from the crossing. He rose from his seat, stood up, seemed as if about to jump from his wagon, but, instead of doing so, changed his lines from one hand to the other, and struck his horse several times with his whip. His horse increased its speed somewhat and crossed the track, but not far enough along to take him out of the reach of the train. It struck and killed him.
The learned trial court charged the jury (the defendant's counsel excepting to the charge as inapplicable to the case) that: -then, if the intestate used his best judgment in adopting the latter course, it was for the jury to determine whether he was careless. It is clear that the intestate was not in imminent peril, unless when he saw the near-approaching train he should refuse to stop his horse. He could and should have stopped then and there. If he had stopped he would not have been in apparent danger, whether he had remained in his wagon, or had jumped from it and taken his horse by the head. The highway and adjoining ground for 25 feet upon each side of him was nearly level. He was not confused by other tracks, trains, or engines. His horse was not restive. If he was absorbed in his own thoughts so as to be less than reasonably alert to the danger of the situation; if he underestimated the speed of the train, or overestimated the speed of his horse,-or all combined, it was his misfortune, not the fault of the defendant. The situation does not support the inference that it must have appeared to him that it was dangerous for him to stop where he was, but, rather, that he supposed that he could safely pass the crossing. Thus, he voluntarily-not under the coercion of other apparent danger, for which the defendant was in fault-took the risk. He could have made no serious comparison between the danger to be apprehended from the fright of his horse and from collision with the train. The burden was upon the plaintiffs to show that their intestate acted with reasonable care under the circumstances. The charge of the trial court permitted such finding, but the evidence did not. The charge was inapplicable, and the verdict without support in the evidence. The judgment should be reversed, and a new trial granted; costs to abide the event.
As this court can review questions of law only, I cannot concur in the prevailing opinion. The conclusion that the plaintiffs' intestate was guilty of contributory negligence, as a matter of law, is not sustained by the decisions of this court. The question of contributory negligence is generally a question of fact to be determined by a jury, and is not within the province of the court. It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence, that the party injured has, by his own acts or neglect, contributed to the injury, that the court can determine that question. Lane v. Atlantic Works, 111 Mass. 136;Weber v. Railroad Co., 58 N. Y. 451;Davis v. Same, 47 N. Y. 400;Hackford v. Same, 53 N. Y. 654. The instances in which such determinations have been sustained have been exceptional cases in which the court has adjudged that such negligence was conclusively established by evidence which left nothing, either of inference or of fact, in doubt or to be settled by a jury. Massoth v. Canal Co., 64 N. Y. 529;Casey v. Railroad Co., 78 N. Y. 518;Stackus v. Same, 79 N. Y. 464;Shaw v. Jewett, 86 N. Y. 616;Cosgrove v. Railroad Co., 87 N. Y. 88;Sherry v. Same, 104 N. Y. 652, 10 N. E. 128;Greany v. Railroad Co., 101 N. Y. 419, 5 N. E. 425;Palmer v. Railroad Co., 112 N. Y. 234, 19 N. E. 678;Feeney v. Railroad Co., 116 N. Y. 375, 22 N. E. 402,5 L. R. A. 544;Swift v. Railroad Co., 123 N. Y. 645, 25 N. E. 378;Oldenburg v. Railroad Co., 124 N. Y. 414, 26 N. E. 1021;Doyle v. Railroad Co., 139 N. Y. 637, 34 N. E. 1063;Graham v. Railway Co., 149 N. Y. 336, 43 N. E. 917. Where no presumption of law exists, the process of ascertaining one fact from the proof of another is within the exclusive province of a jury. It is not indispensable that the particular circumstances relied upon to prove a fact be contradictedin order to make a disputed question of fact. If other circumstances appear in antagonism to the alleged fact, it is for the jury to determine whether the fact is proved. The jury is not only to pass upon the conflicting evidence, but, when different inferences may be drawn from the evidence or the conduct of parties, they are to be drawn by the jury, and not by the court. Justice v. Lang, 52 N. Y. 323;Hazman v. Improvement Co., 50 N. Y. 53;Powell v. Powell, 71 N. Y. 71;Hart v. Bridge Co., 80 N. Y. 622. That different inferences might be drawn from the facts and circumstances of this case becomes quite apparent when we consider that the jury, the trial court, and all the judges who have passed upon the question, save one, have reached an opposite conclusion from that of the majority of this court. That in this case the evidence was sufficient to justify the jury in finding the defendant negligent is assumed in the prevailing opinion, and cannot be denied. To reach the conclusion that the plaintiffs' intestate was guilty of contributory negligence, it is assumed that the proof was undisputed that the head of his horse was within 6 feet of the nearest rail when the decedent looked towards the coming train, and that, looking past the projecting window at the station, he could have seen it approaching at the distance of about 200 feet. But from the evidence the jury was justified in finding that he did not see the train until his horse's head was within 2 feet of the nearest rail. If he could then have seen it a distance of 200 feet,...
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