Fejdowski v. President, etc., of Delaware & H. Canal Co.

• Decision Date: 22 November 1901
• Citation: 61 N.E. 888,168 N.Y. 500
• Parties: FEJDOWSKI v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO.
• Court: New York Court of Appeals Court of Appeals

168 N.Y. 500

61 N.E. 888

FEJDOWSKI

v.PRESIDENT, ETC., OF DELAWARE & H. CANAL CO.

Court of Appeals of New York.

Nov. 22, 1901.

Appeal from supreme court, appellate division, Third department.

Action by Apolonia Fejdowski, administratrix of Wincenty Fejdowski, against the president, managers, and company of the Delaware & Hudson Canal Company. From a judgment of the appellate division (64 N. Y. Supp. 1135) affirming a judgment for plaintiff, and dismissing an appeal from an order of the appellate division (56 N. Y. Supp. 1107) reversing an order of the trial term setting aside a verdict in favor of plaintiff and granting a motion for a new trial, defendant appeals. Reversed.

This action, brought to recover damages resulting from the death of the plaintiff's intestate, caused, as alleged, by the negligence of the defendant, resulted in a verdict for the plaintiff, rendered on the 9th of April, 1897. A motion for a new trial made by the defendant at the trial term upon the minutes of the judge resulted in an order setting aside said verdict and granting a new trial. On the 17th of January, 1899, said order of the trial term was reversed by the appellate division (56 N. Y. Supp. 1107), and on the 26th of June following judgment was entered on the verdict in favor of the plaintiff. On the 8th of July, 1899, the defendant appealed to the appellate division from said judgment, and gave notice that it intended ‘to bring up and have reviewed an order of said appellate division made January 17, 1899, * * * which reversed an order of the trial term setting aside a verdict in favor of the plaintiff.’ On the 15th of May, 1900, the appeal from the order was dismissed, and the judgment was affirmed. 64 N. Y. Supp. 1135. On the 26th of November, 1900, the defendant appealed to this court from the order of dismissal and judgment of affirmance, but gave no notice of its intention to bring up for review the order of January 17, 1899, reversing the order of the trial judge in setting aside the verdict. Upon the argument before us the defendant moved for leave to amend its notice of appeal by inserting such notice of intention, which motion was opposed by the respondent upon the ground, among others, that, as the time to appeal had expired, the amendment would, in effect, enlarge the time to appeal, and hence was not within the power of the court. The facts, so far as material, are stated in the opinion.Lewis E. Carr, for appellant.

Daniel Naylon, Jr., and Edward C. Witmyer, for respondent.

VANN, J. (after stating the facts).

Edison avenue is a public and much-traveled street in the city of Schenectady, 50 feet wide, with a sidewalk on each side. It runs approximately north and south, and crosses at right angles and at grade the single-track railroad of the defendant. East of the crossing the track is straight for upwards of 700 feet, and is elevated above the adjacent land from 6 to 8 feet. To an observer standing at the crossing, or within 20 feet north thereof, the track towards the east is plainly visible by daylight for a distance of about 1,000 feet. At about half-past 6 in the evening of October 17, 1895, the plaintiff's intestate, who was a sober and industrious man about 40 years of age, and in full possession of his faculties, was driving from the north on Edison avenue towards the crossing in question. When seen about 300 feet north of the crossing, he was seated on a high seat at the front end of a two-horse market wagon, driving his team of two horses on a walk. When he was about 15 feet from the crossing, and his horses somewhat nearer, he stopped to enable a train of the defendant, consisting of a locomotive, tender, and eight or ten freight cars, which was rapidly approaching from the east, to pass by. The night was cloudy and dark, with neither moon nor stars visible. There was no flagman at the crossing, nor light near it. The freight train made a loud noise, and after it had reached a point about 100 feet west of the crossing the decedent said, ‘Get up.’ The team started, and as he was thus driving across the track he was struck by an engine following a short distance behind the train and instantly killed. His head was found 80 feet and his body 100 feet west of the crossing. This engine was not running on regular time, but was backing ‘wild’ from the east at from 25 to 30 miles an hour, with a lighted headlight on the east end, but no light on the west end, and without ringing the bell or sounding the whistle. The freight train was about 200 feet ahead of the engine, and the loud noise made by it was audible when the engine reached the crossing. There was no evidence tending to show that the decedent either looked or listened, and it did not appear whether he was familiar with the crossing or not. A witness, whose eyesight and hearing were good, was walking on the sidewalk close to the decedent as he drove along the street. Both stopped and waited for the freight train to pass. As the decedent started to drive over the track the witness walked alongside, and, as he testified, listened and looked to the east all the time as he went forward to the track, but neither saw nor heard anything of the approaching engine until the crash came. He heard the noise of the train passing on to the west, but did not see or hear the engine coming on from the east, although he was where he could have seen it if it was visible, and could have heard it if it was audible above ‘the roar of the train.’ These leading facts, which might have been found from the evidence, justified the trial judge in submitting the case to the jury. There was a sharp conflict in the testimony, but the affirmance by the appellate division, although not unanimous, places it beyond our power to weigh the evidence. Our power of review in this regard extends no farther than to inquire whether there is any evidence which would warrant a reasonable man in finding the facts in accordance with the theory of the plaintiff.

If the defendant, as the jury might have found from the evidence, backed its locomotive over the crossing in question at a high rate...