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

• Citation: 213 N.Y. 352,107 N.E. 568
• Parties: CONNELL v. NEW YORK CENT. & H. R. R. CO.
• Decision Date: 05 January 1915
• Court: New York Court of Appeals

213 N.Y. 352

107 N.E. 568

CONNELL

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

Court of Appeals of New York.

Jan. 5, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Catherine Connell, as administratrix of Michael Connell, deceased, against the New York Central & Hudson River Railroad Company. A judgment for plaintiff was affirmed by the Appellate Division (156 App. Div. 916,141 N. Y. Supp. 1113), and defendant appeals. Reversed.

Charles F. Brown, of New York City, for appellant.

R. H. Barnett, of Newburgh, for respondent.

HOGAN, J.

This action was brought by plaintiff, as administratrix of Michael Connell, deceased, to recover damages by reason of the death of said Connell, alleged to have been caused by the negligence of defendant.

For a period of two years prior to the date of the accident the intestate had been employed as a flagman at the Washington street crossing in the yard of defendant at Newburgh. His hours of service were continuous from 7 o'clock in the morning until 7 o'clock in the evening. Washington street was extensively used as a public highway and crossed at right angles defendant's tracks at grade. The defendant daily moved about 50 passenger trains over the crossing in addition to regular and extra freight trains. For some distance from the crossing was a retaining wall running parallel with the tracks, which wall was about 7 feet high, upon the top of which was a railing, and the top of the wall was level with the street adjacent. The space between the wall and the tracks of the defendant was 5 feet 9 inches. The overhang of the locomotive was 18 inches, leaving a clear space of 4 feet 3 inches.

On the 23d day of February, 1909, about 11 o'clock in the morning, the intestate was observed at a point about 70 feet north of the crossing, standing with his face towards the retaining wall, in the act of relieving the demands of nature. At the time he was seen by the witness a train was approaching, bound east, and was about 10 or 15 feet north of where the intestate was standing. Upon the trial counsel for the plaintiff stated:

‘I will concede that Connell had his face to the wall in the act of urinating at the time he was killed.’

Again at the close of the entire case, counsel for plaintiff again stated:

‘In order to avoid any misunderstanding, the plaintiff concedes that at the time when the approaching east-bound train had reached a point 10 or 15 feet north of the place where the deceased met his death, he was last observed seen standing facing the wall in the act of urination.’

The train consisted of an engine, tender, and caboose, and was moving at the rate of 10 or 12 miles an hour. After the train had passed the point where Connell was standing his body was found in the space between the tracks and wall; his head was cut open and he was lifeless.

On behalf of the plaintiff evidence was adduced by the witness who saw the accident and by the three sons of the intestate, who were in the habit of taking dinner to him, to the effect that they had seen the intestate use the place in question for his personal convenience a large number of times while he was flagman at the crossing, but no evidence was offered on behalf of the plaintiff tending to disclose knowledge of such use of the place by the defendant. The agents and servants of the defendant disclaimed knowledge of such fact.

It was claimed by counsel for plaintiff that the defendant, having failed to furnish facilities to enable the intestate to relieve himself, and the demands of nature from time to time being incident to his long continuous hours of service, the defendant owed to the intestate the duty of exercising reasonable care for his safety while he was engaged in using the place in question; that the use by the intestate of the place for the purpose stated, without objection by defendant, was constructive notice to defendant of the use of its property therefor; that the intestate had the right to assume that the engineer would maintain a lookout; that proper signals would be given announcing the approach of the train, and that the intestate would not be wantonly run over or injured; that to one standing at the place in question the view looking north would be obstructed by certain snow guards, switch indicators, telegraph poles, etc. The trial justice in his charge to the jury said:

‘The theory on which this case is presented to you is to determine whether or not this defendant had notice, constructive notice, of the long user of this place by this servant of the defendant for the purpose for which he used it. That is, that it acquiesced in the use of this place by this servant for the purpose for which they knew he was there, and that in the exercise of reasonable care it should have approached that place so as not to commit upon him unnecessary injury.’

Counsel for the defendant excepted to the charge of the justice, and the court added:

‘I said I will leave it to them [the jury] to say whether there was constructive notice. If it was not, this case falls of itself. The...