Feeney v. Long Island R. Co.

• Decision Date: 22 October 1889
• Parties: FEENEY v. LONG ISLAND R. CO.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 375

22 N.E. 402

FEENEY

v.LONG ISLAND R. CO.¹

Court of Appeals of New York,

Second Division.

Oct. 22, 1889.

Appeal from supreme court, general term, second department.

Action by Kate Feeney against the Long Island Railroad Company for personal injuries. Plaintiff obtained judgment, which was affirmed by the general term. Defendant appeals.

Code Civil Proc. N. Y. § 834, is as follows: ‘A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.’

Edward E. Sprague, for appellant.

Charles J. Patterson, for respondent.

VANN, J.

A public street in the city of Brooklyn, known as ‘Unica Avenue,’ crosses at grade the tracks of a steam railroad operated by the defendant in Atlantic avenue, another public street of said city. At the point of intersection there are safety-gates erected and operated by the defendant, pursuant to an ordinance of the city based upon an act of the legislature authorizing the common council to prescribe regulations with regard to the public safety. The gates on both sides of the track are raised and lowered at the same time, and by the same movement of a crank turned by the gateman. On the 8th of November, 1885, at half-past 7 in the evening, the plaintiff was walking southerly on Utica avenue, and, as it was raining hard, had raised her umbrella. As she approached said crossing the gates were up and stationary; but after she had passed under the north gate the gateman lowered the gates more rapidly than usual, and as she was passing under the south gate it fell upon her head, and injured her. As she passed over the track she did not look to see whether the second gate was coming down or not. A train was in sight, but it had not reached the station above. Although the gateman was sworn, it did not appear that any warning or signal was given that the gates were being lowered, or that there was any lantern or other device to attract attention to them. He testified, however, that he kept his eyes upon the gates as they were coming down, so as to avoid hitting any one, and that it was his duty to do so, but that he did not see the plaintiff. The evidence warranted the jury in finding that the defendant omitted to observe that degree of care required by the circumstances, and that, owing to such omission, the plaintiff was injured. It was the duty of the defendant to use due care in operating the gates so as to protect persons traveling the public highway, not only from being run over by the cars, but also against injury from the gates themselves. If, on reaching a crossing protected by safety-gates, a person finds them raised and motionless, he is at liberty to go on, and, if it becomes necessary to lower the gates while he is passing between them, it should be done with all the care demanded by the peculiar situation, and with due regard to the safety of human life. The trial court, therefore, properly charged the jury that if the gateman, by the exercise of due care on the occasion of this accident, could have operated the gates without injury to the plaintiff, he was bound to do so, and that negligence on his part in this regard was the negligence of the defendant.

The defendant claimed that the plaintiff was guilty of contributory negligence, and in instructing the jury upon this subject, the trial judge said: ‘There is a duty also resting upon the plaintiff. She is on the highway, but crossing a dangerous place. She is bound to look, not only to prevent injury from the trains, but also from these gates. If, by proper precaution on her own part, she could have avoided injury, she was bound to observe it. If she did not, she cannot recover.’ At the request of appellant's counsel, he further charged that ‘the plaintiff was bound to exercise due caution to ascertain whether a train was approaching, in order to inform herself as to whether the gate was likely to be put down while she was in the act of crossing the track.’ When asked to charge ‘that she was bound in law to look, before passing under the second gate, to see whether it was about coming down,’ he said: ‘I will leave it to the jury to say whether, under all the circumstances, she exercised ordinary care.’ The defendant excepted, whereupon the trial judge said to the jury: ‘She was bound to exercise the care you expect from an ordinarily careful, prudent person in going under the first and second gate. It is for the jury to say whether she did it.’ The degree of care required of a person approaching a dangerous place should be proportioned to the degree of danger, known or apparent, to be encountered. Weber v. Railroad Co., 58 N. Y. 451, 456. In crossing the tracks of a railroad operated by steam, more care is required than in crossing a railroad operated by horses, because the cars upon the former move more rapidly, and cannot be so readily stopped as those upon the latter. Barker v. Savage, 45 N. Y. 193. There is still less danger in passing under safety-gates, as they need not be lowered rapidly, and should at all times be under the control of the gateman. If he does his duty, there is little or no danger. The plaintiff had the right to assume that the gateman would not be negligent on the occasion in question, (Newson v. Railroad Co., 29 N. Y. 383;) although she was not, on this account, relieved of the necessity of exercising that degree of care that would have been used by a person of ordinary prudence under the same circumstances. The law does not measure that degree of care, of but leaves it to the judgment of the jury, when there is evidence upon the subject for them to consider. The plaintiff,...