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

• Decision Date: 22 March 1901
• Citation: 166 N.Y. 280,59 N.E. 901
• Court: New York Court of Appeals Court of Appeals
• Parties: HENAVIE v. NEW YORK CENT. & H. R. R. CO.

166 N.Y. 280

59 N.E. 901

HENAVIE

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

Court of Appeals of New York.

March 22, 1901.

Appeal from supreme court, appellate division, First department.

Action by Peter Henavie, administrator of Patrick Henavie, deceased, against the New York Central & Hudson River Railroad Company for death of intestate killed at a crossing. The complaint was dismissed, and exceptions ordered to be heard in the first instance by the appellate division. From the judgment (60 N. Y. Supp. 752) overruling the exceptions and denying motion for new trial, plaintiff appeals. Reversed.

George W. Miller and Benjamin Patterson, for appellant.

Charles C. Paulding, for respondent.

VANN, J.

Upon the trial of this action evidence was given tending to establish the following facts: Eleventh avenue and Forty-Fifth street, in the city of New York, cross each other substantially at right angles. In the avenue as it crosses Forty-Fifth street, and on an even grade therewith, are two railroad tracks belonging to the defendant, upon which engines are run propelled by steam. On the 5th of April, 1895, at about half past 9 in the evening, on a clear night, the plaintiff's intestate, 32 years of age, and in the full possession of his faculties, so far as appears, started to walk across the avenue on the cross walk extending from the southeast to the southwest corner of the two streets. It was 22.3 feet from the curbstone where he started to the first rail of the nearest track. He lived in the neighborhood, and was familiar with the crossing. At this time an engine, attached to a few freight cars, was either standing still at Forty-Fourth street, as two witnesses stated, or was backing on the south track from Forty-Fourth street towards the crossing, and a passenger train was approaching on the north track, going in the opposite direction. There was neither gate nor flagman at the crossing, and no whistle was sounded or bell rung, nor any kind of warning given of the approaching engine, except that a headlight on the end of the tender was lighted. The engine was moving so quietly that two observers who saw the headlight thought it was standing still. The deceased was walking along in the usual way, going straight across, and whistling as he walked. As he started across he was seen to look both to the right and left, and as he was half way between the curb and the nearest track he looked again in both directions. In an instant he reached the first rail, was struck, and mortally injured. The engine was described by one witness as moving ‘fast,’ by another as moving ‘swift,’ and by the engineer as moving at from 4 to 4 1/2 miles an hour. It stopped, as one witness testified, after the first trucks of the first car had passed over the decedent. It moved the length of a block while he walked 22 feet. At the close of the evidence for the plaintiff the court dismissed his complaint, and ordered his exceptions to be heard in the first instance by the appellate division, where they were overruled, and the motion for a new trial was denied. From the judgment entered accordingly the plaintiff, after obtaining permission, appealed to this court.

There was a conflict in the evidence as to whether the bell on the engine which ran over the plaintiff's intestate was ringing or not. The accident was seen by two witnesses, one standing at the northeast corner of the crossing, who, after stating that he observed the train, testified that he heard no noise coming from the engine, and that he did not hear any bell rung; the other, who was walking between Forty-Fifth and Forty-Sixth streets, testified that he observed the train, and that no bell was rung. On his cross-examination, after stating that he was positive that no bell was rung, the record discloses the following: ‘Q. How are you sure of that? A. I did not hear it. Q. That is all you mean to say, you did not hear it? A. I did not hear it. Q. That is what you mean to say when you say it was not rung? A. It was not rung. Q. I say, when you say it was not rung, you mean to say you did not hear it rung. Isn't that so? A. If I can't hear it, it can't be rung. Q. When you say the bell was not rung, you mean to say you did not hear it? A. That I did not hear it. Q. That is all you mean to swear? A. It was not rung.’ The engineer, who was called by the plaintiff, testified that the bell was ringing when the accident happened, but he did not state how long it had been ringing. A witness, shown to have been in a position to hear, who testifies that he observed the engine, but did not hear the bell ring, furnishes some evidence that the bell was not ringing; and, if he is positive that the bell was not rung, he furnishes strong evidence that the bell was not ringing. The evidence of the witness in this case, who was positive upon the subject, was not materially affected by his cross-examination; for while he said he did not hear the bell, when asked if that was all he meant, twice answered that it was not rung. The answers were not inconsistent. We assume, therefore, that the jury might properly have found that the bell was not rung. A railroad...