Hamilton v. Erie R. Co.

• Decision Date: 28 November 1916
• Citation: 114 N.E. 399,219 N.Y. 343
• Parties: HAMILTON, County Treasurer, v. ERIE R. CO.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 343

114 N.E. 399

HAMILTON, County Treasurer,

v.ERIE R. CO.

Court of Appeals of New York.

Nov. 28, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Walter G. Hamilton, county treasurer, etc., against the Erie Railroad Company. From a judgment of the Appellate Division (170 App. Div. 901,154 N. Y. Supp. 1125), affirming a judgment for plaintiff, directed by the court at Trial Term, the defendant appeals by permission. Affirmed.

William C. Cannon, of New York City, for appellant.

Frederic C. Scofield, of New York City, for respondent.

COLLIN, J.

The plaintiff seeks to recover, under the statute (Code of Civil Procedure, §§ 1902-1905), the damages for a neglect of the defendant through which his intestate was killed while crossing, upon a highway, the tracks of defendant. The entire evidence at its close was submitted to the trial justice through motions for a dismissal of the complaint, the direction of a verdict for the defendant, and the direction of a verdict for the plaintiff. The justice directed a verdict in favor of the plaintiff. The consequent judgment was unanimously affirmed by the Appellate Division. The chief judge of this court granted the defendant leave to appeal to it.

[1] The tracks of the railroad at the highway crossing ran easterly and westerly. The intestate, in a farm wagon drawn by a team of horses which he was driving, stood on the southern side of and about 20 feet from the east-bound or southern track, while a west-bound freight train passed on the west-bound or northern track over the crossing, and then drove upon the crossing. The evidence permitted the trial judge to find: The engine of an east-bound passenger train going at the rate of 50 miles an hour collided with the wagon at 5 o'clock and 40 minutes in the morning of March 3, 1909; the sun had not risen and a mist or fog prevailed; the crossing was unprotected except for an automatic electric signal bell, which was out of order and was ringing and rang continuously; no warning of the approach of the east-bound train was given by the sounding of the bell or whistle of its engine, and the passing freight train made considerable noise. Those findings supported the conclusion that the defendant was negligent.

[2] The view of the intestate toward the west, as he stood waiting for the passing of the freight train, and as he passed on northerly to a point about 10 or 15 feet from the east-bound track, was obstructed; the heads of the horses were 12 or 14 feet north of the intestate, and the horses were upon the east-bound track at the time the intestate could first have seen the approaching engine; the engine was not less than 125 feet and not more than 225 feet from the crossing, and was traveling at the rate of about 73 feet in a second at the time the intestate could have first seen it or the train. While the evidence in regard to the view of the approaching train practicable to the intestate was in direct contradiction, it supports as facts those statements. Our decision in Parsons v. Syracuse, B. & N. Y. R. R. Co., 205 N. Y. 226, 228,98 N. E. 331, is an authority upholding the trial court in finding that the intestate was free from contributory negligence. In that case Judge Hiscock, writing for the court, after stating that the case was submitted to the jury upon two theories, the first of which was, it was the duty of the intestate to ‘look and listen only in the event that the jury should find from the evidence in this case that it would have availed him, had he looked and listened,’ said:

‘I think that the evidence justified the court in submitting the case to the jury on the first theory. Taking into account the speed of the engine, the absence of the usual signals either of sound or light, the character of the night, and the obstructions to the view, the jury might have found that the exercise of reasonable care by intestate in looking and listening for the approach of a train would not have enabled him to detect the approach of this light engine in time to escape the collision, and, therefore, have relieved him from the imputation of contributory negligence.’

The appeal presents the more serious question, whether or not there had been a valid settlement and release of the cause of action by the beneficiaries of it, through and by the acts of the Imperial Russian consul general at New York. On October 6, 1909, the defendant paid the Imperial Russian consul general, through the vice consul, $400 in full settlement of all claims and demands against it for the death of the intestate and the consul general executed and delivered to the defendant a receipt of the amount ‘in full settlement of all claims and demands against the company for the death’ of the intestate, and, in the name of the widow ‘as wife and admx.,’ a release ‘for myself, my heirs, my executors, administrators and assigns' from all claims and demands arising or growing out of the death. The next of kin of the intestate were three infant children residing with their mother in the village of Ozero, province of Volhynia, Russia. The $400 were paid to the Russian authorities of that province and by them deposited in a local bank to the credit of the heirs of the intestate. The appellant asserts and argues that the transaction constituted, by virtue of a power given the consul general by the treaty to be referred to, a settlement of the cause at action.

Through the year 1909, a treaty between the United States and Russia contained the clause:

‘The two contracting parties shall have the liberty of having, in their respective ports, consuls, vice consuls, agents and commissaries of their own appointment, who shall enjoy the same privileges and powers as those of the most favored nations.’

The appellant correctly asserts that under this clause the powers of the Russian consul and vice consul in the matter of settling with and releasing the defendant from the damages arising from the death of the intestate were equal to those given the consular representatives of any other nation by a treaty with the United States, and specifically refers us to the provision of the then existing treaty with Spain:

‘The consuls general, consuls, vice consuls or consular agents of the respective high contracting parties shall have, under the laws of their country and regulations of their own government so far as compatible with local laws, the right of representing the absent, unknown or minor heirs, next of kin or legal representatives of the citizens or subjects of their country, who shall die within their consular jurisdiction; as well as those dying at sea whose property is brought within their consular district; and of appearing either personally or by delegate in their behalf in all proceedings relating to the settlement of their estate until such heirs or legal representatives shall themselves appear. Until such appearance the said consular officers shall be permitted, so far as compatible with local laws, to perform all the duties prescribed by the laws of their country and the instructions and regulations of their own government for the safeguarding of the property and the settlement of the estate of their deceased countrymen.’

[4][5] An assertion of the respondent is that the record contains no evidence that the deceased was at the time of his death a citizen of Russia or a subject of the Czar of Russia. The complaint alleges:

‘That the said Stephen Mistschook was at the time of his death a resident of Rockland county and left him surviving a widow and three minor children, Eva Mistschook, Julien Mistschook and Elarion Mistschook, all dependent upon him for support and all aliens resident in Russia, Europe.’

The answer alleges that the intestate was, at the time of his death, a subject of the Emperor of Russia. The counsel for the plaintiff, upon the trial, in the opening of the case to the jury, stated that the intestate came to this country from Russia and had arranged to bring his wife and three children to this country to make them citizens of it. Through a deposition, the widow testified that on March 3, 1909, she was and prior thereto and since November 3, 1896, had been the wife of the intestate; that they were married in the village of Ozero, province of Volhynia, Russia; that they lived at Ozero until 1907, when the intestate said good-bye to her there, telling her he was going to America. He arrived in the United States about February, 1907. He was 32 years old at the time of his death. The record does not disclose the country of his birth. It was thus proven that the intestate was an alien; that at the age of 20 he resided and married, and through the succeeding 12 years resided in Russia; that his wife and children continued until his death to reside and receive there their support from him, and were aliens. The facts created the presumption that he was, while a resident, a citizen of Russia. The relation is presumed to have continued until a change of citizenship is proved. Shelton v. Tiffin, 6 How. 163, 185, 12 L. Ed. 387;Hauenstein v. Lynham, 100 U. S. 483, 25 L. Ed. 628;Campbell v. Wallace, 12 N. H. 362, 37 Am. Dec. 219;State ex rel. Phelps v. Jackson, 79 Vt. 504, 65 Atl. 657,8 L. R. A. (N. S.) 1245. Moreover, the acts of the Russian consul general under the treaty created the presumption that the intestate was a citizen or subject of Russia, because otherwise those acts would have been nugatory and mischievous. The acts of a public officer which presuppose the existence of other acts or conditions to make them legally operative are presumptiveproofs of the latter. Bank of the United States v. Dandridge, 12 Wheat. 64, 6 L. Ed. 552;Cincinnati, New Orleans & Texas Pac. R. Co. v. Rankin, 241 U. S. 319, 327, 36 Sup. Ct. 555, 60 L. Ed. 1022;Swarthout v. Ranier, 143 N. Y. 499, 504,38 N. E. 726;Pringle v. Woolworth, 90 N. Y. 502. ‘The general presumption is that no official or person acting under an oath...