Emens v. Lehigh Valley R. Co.

• Decision Date: 25 January 1915
• Parties: EMENS v. LEHIGH VALLEY R. CO.
• Court: U.S. District Court — Northern District of New York

223 F. 810

EMENS v. LEHIGH VALLEY R. CO.

United States District Court, N.D. New York.

January 25, 1915

[Copyrighted Material Omitted]

Hiscock Doheny, Williams & Cowie, of Syracuse, N.Y., for plaintiff.

A. D Jenney, of Syracuse, N.Y., for defendant.

RAY District Judge.

On the 28th day of August, 1910, Edgar A. Emens, Mrs. Edgar A. Emens, his wife, and Martha E. Emens, his sister, with Carl M. Kilmer, the chauffeur, were riding in an automobile and proceeding on the Lake Road, so called, a public highway in a direction generally somewhat east of north, and while crossing the tracks of the Lehigh Valley Railroad Company, this defendant, at what is known as the Swarthout Crossing, the rear end of the automobile was struck by an engine drawing a train of seven or nine cars running on said tracks in a direction somewhat west of north, and such automobile was partially demolished, the occupants thrown out, and all were more or less injured, but the two ladies received injuries from which they very soon thereafter died.

This action was brought by Edgar A. Emens, as executor of the last will and testament of the said Martha E. Emens, deceased, to recover the pecuniary damages, if any, sustained and recoverable by reason of the alleged wrongful act, neglect, or default of the defendant railroad company on the occasion referred to under the provisions of sections 1902 and 1903 of the Code of Civil Procedure of the state of New York, and which read as follows:

'Sec. 1902. Action for * * * Death by Negligence, etc.-- The executor or administrator of a decedent, who has left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent's death.'

'Sec. 1903. For Whose Benefit Recovery Had.-- The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent's husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice, given in such a manner and to such persons, as the surrogate deems proper.' Martha E. Emens had never married, and she left her surviving, as her sole next of kin, four brothers, said Edgar A. Emens, Olin E. Emens, Humboldt Emens, and Fred S. Emens, all of full age. The plaintiff alleged and alleges that the defendant railroad company was negligent on the occasion referred to in that it did not give adequate or suitable notice of the approach of its train, the train referred to, to this crossing, and that this failure on its part resulted in the collision, injuries, and death of Miss Emens referred to. The collision, injuries, and death were not questioned by the defendant, but it strenuously contends that: (1) The defendant was in no way negligent; (2) that the plaintiff's testatrix was herself guilty of contributory negligence. The defendant denied and denies that there was sufficient evidence of negligence to take the case to the jury, and alleged and alleges that the evidence showed contributory negligence, as matter of law. The defendant alleges error in that on all the evidence the case should not have been submitted to the jury, but a verdict directed for the defendant; (2) that there was prejudicial errors committed in the admission and rejection of evidence; and (3) that there were prejudicial errors in the charge of the court; and (4) that the damages awarded by the jury are excessive and not supported or justified by the evidence.

The Situation.

As stated, speaking generally, the Lake Road, or highway, ran a little east of north until within about 15 or 20 feet of the westerly rail of the most westerly track of the railroad, when it turned rather sharply to the east to cross the railroad tracks. After crossing the tracks, it turns again to the north or northeast. The railroad bed and tracks run in substantially a straight line for at least a mile northerly from this Swarthout Crossing and about three-fourths of a mile southerly therefrom. The first station south is Valois and the first station north is Caywood. The grade from a point a little north of Valois descends until Caywood is reached, so that trains going north, or, as the railroad men say, on the 'west-bound track,' run on a downgrade. At the distance of three-fourths of a mile south of this crossing, and quite a distance northerly of Valois, there is a curve, but after rounding this curve, and for a distance of some more than 2,520 feet, a train running north on these tracks is in view of a person on the Swarthout Crossing or in the highway and within 50 feet of the most westerly rail of the railroad tracks. Seven hundred and fifty feet south of this Swarthout Crossing there is a crossroad running east and west and crossing the railroad tracks, and this cross-road intersects the Lake Road at a point about 800 feet southerly of the Swarthout Crossing and about 240 feet from the crossroad railroad crossing. It is seen that we have a triangular space formed by the crossroad for its base, the railroad tracks and embankment and the Lake Road as its two sides, and having its apex at the Swarthout Crossing. The Lake Road and the railroad tracks approach each other at an angle of 17 1/2 degrees. At the Swarthout Crossing the railroad tracks and top of the embankment are about 6 1/2 feet above the level of the highway (Lake Road) and at the crossroad crossing some 9 1/2 feet above. At the Swarthout Crossing the Lake Road fill, to make the crossing, commenced some 200 feet from the crossing, but the fill was not uniform, being more steep and abrupt just before coming to the rails, with a level place of some 13 feet after making the rise before reaching the westerly tracks. Within this triangular space are pear trees set in rows, and on the south side of the crossroad and between the Lake Road and the railroad embankment there were buildings and some apple trees. At the time of the accident there was a crossing sign at both these crossings, and the one at the Swarthout Crossing was visible to travelers on the Lake Road at all times after reaching the crossroad. There was a line of telegraph poles along the railroad. These trees were of such height at the time as to hide the railroad embankment from those in the automobile, except as a view might be caught through the openings between the trees. All the persons in this automobile were strangers to this locality. No one of them had traveled the road before. It was conceded all round that, as they approached the scene of the accident, they were conscious that they were in the vicinity of a railroad and a railroad crossing. However, of the perilous nature and character of the crossing they were necessarily ignorant. The Lake Road highway makes its sharp turn to the east to cross the tracks just before reaching the level space of 13 feet next the most westerly tracks; and hence the persons within the automobile were within 50 feet of the iron tracks when they attained a position where the automobile, having turned east, was at right angles with the tracks running north and south.

There were cattle guards and cattle guard fences on each side of these two highway crossings. This fence immediately south of the Swarthout Crossing was 93 feet from it, and the one immediately north of the crossroad crossing some 600 feet further south, and the other something like 200 feet further south. The crossing sign 'Look out for the Cars' was south of the Lake Road and some feet from the most westerly railroad tracks. About halfway down to the other crossing stood a semaphore on the westerly side of the tracks. These cattle guard fences were some four feet in height and ran up to within a few feet of the tracks and were formed of boards nailed parallel to each other some six or eight inches apart on posts set in the ground. To a person sitting in an automobile and 50 feet from the westerly tracks at the Swarthout Crossing, and approaching them from the south, the cattle guard fences would obstruct a view of the line of rails more or less. In approaching the rails riding in an automobile, until the turn was fully made, to see back up the railroad tracks in the direction of the curve (that is, to the south), it was necessary to turn the head quite considerably, and, until out of line with them, the crossing sign post and semaphore would more or less interfere with or confuse the sight or view of any object beyond them and in the same line. Until the automobile made the sharp turn of the highway just before going upon the rails or the level space of 13 feet before reaching the rails, it was proceeding in substantially the same direction as the train. The two moving bodies were approaching the apex of the triangle described, one on each of its sides, at the angle of 17 1/2 degrees. Until the automobile ascended the fill at the Swarthout Crossing, it was lower down than the railroad tracks. The Swarthout house, with a stone stepping block in front, is 145 feet from the westerly rail of the west-bound track, where the collision occurred, or about 125 feet from the most westerly rail; that being the west rail of the east-bound track. At this point in a direct line it is 36 feet to the westerly rail. At a...