Countryman v. Fonda, J.&G.R. Co.

• Decision Date: 12 March 1901
• Citation: 166 N.Y. 201,59 N.E. 822
• Court: New York Court of Appeals Court of Appeals
• Parties: COUNTRYMAN v. FONDA, J. & G. R. CO.

166 N.Y. 201

59 N.E. 822

COUNTRYMAN

v.FONDA, J. & G. R. CO.

Court of Appeals of New York.

March 12, 1901.

Appeal from supreme court, appellate division, Third department.

Action by Pearl Countryman, as administrator of the estate of Christina Countryman, deceased, against the Fonda, Johnstown & Gloversville Railroad Company. From an order granting a motion for nonsuit, affirmed by the appellate division (54 N. Y. Supp. 1098), plaintiff appeals. Reversed.

Clark L. Jordan, for appellant.

A. D. L. Barker, for respondent.

BARTLETT, J.

This is an action by an administrator to recover damages for causing the death of his intestate, resulting from the alleged negligence of the defendant, brought under the provisions of Code Civ. Proc. §§ 1902-1908. On the morning of the 3d day of January, 1895, Christina Countryman, the deceased, was riding in a cutter with one Walter C. Coates, traveling in a southerly direction on Main street, in the city of Gloversville. The defendant operated on that street, in the center thereof, a singletrack electric railroad, there being sufficient space between the track and the curbstones on either side for the passage of vehicles. On the day in question there was a considerable body of snow, which had been cleared from the track of the defendantby depositing it to some extent upon the driveways on either hand. The day was cold, and the deceased was bundled up in a shawl and cloak. Mr. Coates, who was about 38 years of age, was driving his own horse, and his immediate errand was to take the deceased several miles into the country to the house of a friend. They were driving on the track of the defendant at a rate of speed that Coates testified was from 8 to 10 miles an hour. It appears that the cars passed over this route about once every half hour, except that in wintry weather they were not so frequent. When a little south of Second avenue, which crosses Main street at right angles, Coates heard some one shout, ‘Get off the track; the car is coming!’ He states that up to that moment he had not heard the bell ring, and did not know the car was approaching. An eyewitness testifies that the car was about 75 feet from the cutter at the time this warning was given. There is a conflict in the evidence as to the speed of the car. One witness puts it as high as 20 miles an hour, but it may be fairly inferred from the testimony of plaintiff's witnesses that it was 12 miles an hour. After Coates had been thus warned, what occurred may be given in his own language: ‘I looked around and saw the car coming. I pulled my horse quick to the west to get off the track. I think there was a team on the other side, and I couldn't pull out there. On the east side I think there were teams, but I would not swear positively. Q. Tell what occurred. A. We turned there, and the cutter tipped over. Q. Where did it tip? Where with reference to the track that you turned out of,-how near to that? A. I should not think that the hind runner was over a foot and a half or two feet from the track. It was very close to the car. I mean the hind end of the runner. Q. What did the runner strike, if anything? A. A ridge of snow at the west side of the track. Q. How far from the track? A. About eight or ten inches-something like that, I should think-from the rail. We measured the ridge in the afternoon, and it was twelve inches above the rail. We averaged it up at twelve inches right along there within a few feet. Some of the way it would be six or eight and ten and twelve inches, and some of the way fifteen inches. This ridge was hard, with a soft snow that came the night before. Underneath it was hard snow and ice. When the cutter tipped over Mrs. Countryman fell out. She fell to the east, with her head north and feet south. I think she had a shawl and cloak on.’ This witness was asked, on cross-examination, if he had been going at a moderate gait, whether he could have turned out, and he stated that if the horse had been on a slow walk, and he had gotten up on the edge of the cutter, it would not have tipped over. Coates further testified, in substance, that he did not think the car struck the cutter, but that Mrs. Countryman fell out on the side towards the car when they tipped over, and the step or the snow scraper on the rear end of the car struck her in the head as she was lying upon the ground. I appears that after the accident deceased was at once carried into the office of a physician near by, and it was ascertained that she was suffering from three fractures of the skull. She never regained consciousness, and died a few hours later. Dr. Furbeck, who witnessed the accident, testified that the car passed on beyond the point where the intestate was injured some 150 or 200 feet before it was stopped. The testimony of this witness does not vary materially as to the accident from Coates' account of it. Harvey E. Cromwell was also a witness to the accident, and testified that the car was going from 10 to 15 miles an hour, and stated that, according to his very best judgment, it was moving at the rate of 12 miles an hour. He placed the speed of the horse at from 8 to 10 miles an hour. He testified as follows (referring to Mr. Coates): ‘I saw him try to turn out, and I saw after he started to do so that the cutter began to slide on the first ridge of snow, and I should judge from the way it slid it struck a hard lump and tipped over. After the cutter had entirely left the track, I should think the hind end of the cutter might have been perhaps twelve or fifteen inches when it began to tip over before it made the second ridge. The lady fell out, and struck directly on her back, and he fell out shortly afterwards. * * * The forward scraper of the car struck the lady,-the underside of the forward scraper. * * * The bell was not ringing when I first turned around. If it was, I did not hear it. I heard the rumbling first. Q. How soon after you heard the rumbling and had turned around before you heard the bell? A. Within perhaps ten or fifteen feet. I did not hear anybody hallooing at all. I did not pay any attention to the motorman I turned around to watch the people, to see if they were going to get out safely.’ On cross-examination, the witness said: ‘I will simply swear that I did not hear it ring. I did not hear the bell ring. That was true...