Globe Malleable Iron & Steel Co. v. New Work Cent. & H.R.R. Co.

• Decision Date: 15 July 1919
• Citation: 124 N.E. 109,227 N.Y. 58
• Parties: GLOBE MALLEABLE IRON & STEEL CO. et al. v. NEW WORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

227 N.Y. 58

124 N.E. 109

GLOBE MALLEABLE IRON & STEEL CO. et al.

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

Court of Appeals of New York.

July 15, 1919.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the Globe Malleable Iron & Steel Company and others against the New York Central & Hudson River Railroad Company. From a judgment of the Appellate Division (175 App. Div. 97,160 N. Y. Supp. 24), reversing a judgment of the Trial Term in favor of the plaintiff and dismissing the complaint, the plaintiffs appeal. Judgment of Appellate Division reversed, and that of the Trial Term affirmed.

McLaughlin, J., dissenting, and Hiscock, C. J., dissenting in part.Edward Schoeneck, of Syracuse, for appellants.

Leroy B. Williams, of Syracuse, for respondent.

ANDREWS, J.

[1] Steam railways with tracks on or across streets in the city of Syracuse owe some duty to the public. The street is still a street and is still devoted to street uses. Its legitimate function may not be unreasonably impaired. As to travelers upon it the railway necessarily has the right of way. But an emergency may arise which requires the temporary reversal of this rule. Knowing of such a condition the railway should yield what otherwise would be its rights. It should so manage its trains as not to increase the public hazard. A fair use of its tracks in view of its own interests and those of the public is what it is entitled to. Nothing more.

The tracks of the West Shore Railroad enter Syracuse from the east. Parallel with them some 1,400 feet to the south is the Erie Canal, and some 400 feet to the north, also parallel, is Burnet avenue, a paved street. From the canal to the north runs Greenway avenue. On its west side immediately south of the defendant's road is the plant of the Globe Malleable Iron & Steel Company. Seven hundred feet to the west Teall avenue also runs north from the canal, and 1,600 feet further is Beach street, crossing the canal by a bridge. South of the tracks a lane over the fields connects Beach street and Teall avenue. From an engine on the railroad the view of this lane is practically unobstructed. There is no other communication between the three north and south streets south of Burnet avenue. A traveler going towards the north, therefore, on either Beach street or Teall avenue, can reach Greenway avenue only by way of Burnet avenue.

[227 N.Y. 61]At 4:50, on the morning of June 23, 1912, a fire broke out in the Malleable Iron Company's plant. At this time a freight train consisting of 54 cars and 2,160 feet in length was approaching on the West Shore tracks from the west. The engineer of this train, one Johnson, is now dead. But its fireman testified that he discovered the fire as he crossed James street, some 2 miles away. When a mile distant he could locate it. Johnson had a regular train. On at least five or six trips he had been over the road in this neighborhood with the same fireman. We may assume that he knew the general situation and the communication streets, for the general view towards the canal for much of the way was not obstructed by buildings or other obstacles. As the engine approached Beach street the tracks were straight, and the engineer could see standing on the tracks ahead of him, 150 feet east of Greenway avenue, another freight train.

Meanwhile the fire department of the city of Syracuse was attempting to reach and extinguish the fire. One hose cart crossed the canal and came northerly on Beach street with its gong clanging. It was a still morning. There was not much noise on the engine. The gong could be heard for a distance of 3 or 4 blocks. The train was going slowly at from 2 to 6 miles an hour. It could have been stopped within 30 of 40 feet. It did not stop, however, and the engine reached the crossing as the hose cart approached it. The fireman, seeing that there would be delay, knowing that they could reach the fire only by means of Burnet avenue, turned to the right over the fields and so came to Teall avenue. Their course could be observed from the engine. Their object could have been divined. But when Teall avenue was reached the engine had just passed that crossing also and the hose cart was again blocked.

A second hose cart came south on Teall avenue to Burnet avenue. Its gong was also clanging as it turned ...