St. John v. New York Cent. & H.R.R. Co.

• Decision Date: 08 January 1901
• Citation: 59 N.E. 3,165 N.Y. 241
• Parties: ST. JOHN v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 241

59 N.E. 3

ST. JOHN

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

Court of Appeals of New York.

Jan. 8, 1901.

Appeal from supreme court, appellate division, Fourth department.

Action by William H. St. John against the New York Central & Hudson River Railroad Company for injuries received at a crossing. From a decision of the appellate division affirming a judgment of nonsuit against the plaintiff and an order denying a motion for a new trial (49 N. Y. Supp. 1142), the plaintiff appeals. Reversed.

Charles Van Voorhis, for appellant.

Edward Harris, for respondent.

BARTLETT, J.

The plaintiff seeks to recover of the defendant damages for injuries received on the 29th day of November, 1896, while crossing the tracks of the latter at University avenue, in the city of Rochester. The avenue at that point crosses some 15 tracks of the defendant at an angle. At about 3 o'clock in the afternoon of the day in question the plaintiff and his friend, Johnson French, sought to cross the tracks of the defendant on University avenue, approaching the same from the north. After crossing a number of dead and switch tracks, the plaintiff, in advance of his friend, who had lagged behind for some reason, crossed a track known as ‘No. 1,’ and stepped into a space of 7 feet and 2 inches between it and the track immediately south. His progress was at that point arrested by a shifting train backing west on the last-named track. It appears that both the plaintiff and French observed, when nearing these tracks from the north, that there was a freight frain facing east, and standing some 180 feet to the west of University avenue, on track No. 1, engaged in taking coal for the engine. French testified that, when he started along somewhat rapidly to overtake the plaintiff, the latter was standing in the position already described, and the freight train in track No. 1 had started up, and was running rapidly towards the east. French further stated that his object was to induce the plaintiff to recross track No. 1 towards the north until the shifting train on the track south of it had passed; that as he approached track No. 1 he called out to the plaintiff, who did not hear him, and he then hurried over to his side, in front of the approaching freight train, and stood with him between the moving trains; that the freight train going east on track No. 1 was running at least 15 miles an hour. He further testified as follows: ‘While I was standing there, something hit me on the shoulder, and jostled me around, and, of course, I looked at it at once, and saw it hit Mr. St. John. Being a taller man than I was, it struck him square on the shoulder. It was a projecting stick of some kind, projecting from one of the cars that was backing up. It was an open car, with a side, I think, about that high [illustrating]. Such a car as is used for coal and lumber. * * * After the stick struck Mr. St. John, it drove him into the running train, and he struck his head against the side of a car loaded with hogs. Those cars are built up with slat work on the inside and square posts on the outside, so as to give air to the cattle. He struck against one of those posts on the car, I should judge. Then he fell to the ground. * * * I started right after him, and as he crawled he turned to go under this running train. I grabbed him. That is, he crawled towards the cattle train going east.’ This witness and the plaintiff further testified, under cross-examination, that they did not hear any whistle or bell from the rapidly approaching freight train, although when seeking to rejoin the plaintiff from the north, as already described, French observed that the freight train was leaving the coaling station on the west; but the plaintiff's attention was evidently fixed upon the shifting train backing west, immediately in front of him, on the track south of No. 1. French stated in his direct examination that the stick which projected from the car of the train that was backing up appeared to be about 3 1/2 to 4 inches wide, and that it projected from 18 to 20 inches from the car. It was proved that cars project over the rail from 18 to 22 inches.

Assuming the projection of the cars to have been 18 inches, the plaintiff was standing in a clear space of only 4 feet 2 inches, when both trains were passing, and, if it was encroached upon by a...