Horton v. New York Cent. R. Co.
| Decision Date | 20 November 1923 |
| Citation | 237 N.Y. 38,142 N.E. 345 |
| Parties | HORTON et al. v. NEW YORK CENT. R. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Mary A. Horton and another, as administrators of the goods, chattels, and credits of James W. Horton, deceased, against the New York Central Railroad Company. From a judgment of the Appellate Division (205 App. Div. 763,200 N. Y. Supp. 365), reversing, as a matter of law, a judgment of the Trial Term on a verdict for plaintiff, and dismissing the complaint, plaintiffs appeal.
Reversed, and judgment of Trial Term reinstated.
Appeal from Supreme Court, Appellate Division, Third Department.
J. S. Carter, of Albany (John T. Norton, of Troy, of counsel), for appellants.
Visscher, Whalen, Loucks & Murphy, of Albany (Robert E. Whalen, of Albany, of counsel), for respondent.
The defendant maintains a railroad through the town of Colonie, Albany county, N. Y., known as the Troy & Schenectady line. At a place known as Dunsbach Ferry Station the railroad is crossed at right angles by a highway known as the Dunsbach Ferry road, running north and south. At this point the railroad runs east and west.
On the 29th day of May, 1921, the plaintiffs' intestate was driving an Essex touring car across the track while proceeding south, and was struck by a train going east and killed. This action was brought to recover damages on the ground that the death of James W. Horton was caused by the negligence of the railroad company, and resulted in a verdict for the plaintiff. The judgment in her favor, however, entered upon this verdict has been unanimously reversed by the Appellate Division, and the complaint dismissed on the ground that the deceased was guilty of contributory negligence as a matter of law.
[1][2] The order states that the reversal was on the law. In considering this case, therefore, we are obliged to take the evidence most favorable to the plaintiff and see whether it makes out a question of fact for the jury or whether, considered in the light of the most favorable inferences, it fails to justify a recovery. That is, on all the evidence and the reasonable inferences to be drawn therefrom most favorable to the plaintiff, does it appear as a matter of law that the deceased was guilty of contributory neglect? The burden of proving contributorynegligence was on the defendant. Section 265 of the Civil Practice Act. The facts surrounding the accident are as follows:
James W. Horton was a married man, 52 years of age, living in Cohoes. On the 29th day of May, 1921, at about 15 minutes past 10 on a Sunday morning, he was driving on the Dunsbach Ferry road in a southerly direction, approaching the track of the Troy & Schenectady line of railroad. This was a single track. The train was approaching from his right, and was completely hidden from view until the traveler was almost upon the track. Alongside of the roadway, hiding the approaching train, was an embankment 5 1/2 feet high, covered with grass a foot or more high. This bank extended down to within about 9 feet of the northerly rail of the track. The top of the bank or mound was about 15 feet from the track. This is the estimate given by John Flynn, Jr., a civil engineer. Other witnesses said that the view to the right or to the west was obstructed to even a greater extent. A witness, Robert Wilson, said:
‘You have got to be close to the track before you can see a train.’
A witness named William Trimble testified:
Another witness, Joseph Stevenson, presented the situation as follows:
These witnesses for the plaintiff are corroborated by the defendant's fireman who was on the train, Francis Barrington. He was asked:
If the man on the engine could not see the highway until he got within 20 feet of it, the people on the highway could not see the engine until it got within 20 feet of the crossing.
This being the situation on this Sunday morning in question, James W. Horton drove his car down towards the track at about 10 miles an hour until he approached the disc or railroad sign erected 300 feet from the track pursuant to section 53a of the Railroad Law. Consol. Laws, c. 49. He then slowed down to about 5 or 6 miles an hour, and proceeded cautiously as described by Albert Cushan and Charles W. Carter.
Carter was in a Ford car drawn up on the westerly side of the road about 20 feet north of the railroad track. He was talking to Cushan, who stood with a foot on the step of his car. Horton passed these men. Fifteen or more cars were also stationed in the vicinity alongside the road. There was a church near by which the occupants of these cars were to attend. Cushan says:
Charles W. Carter gives the same testimony. He says that he was 20 feet from the track when Horton passed him, and that when he first saw the engine, as it came out from behind the bank, it was only 5 or 6 feet from the crossing.
Taken in conjunction with this testimony, we must also consider these additional facts:
There was no regular passenger train on Sundays until 5 o'clock in the afternoon. There was one freight train which ran in the morning. The gateman was not in attendance, and the gates were left up all Sunday. From 300 to 1,000 people attended Dunsbach Ferry Grove on Sundays at this time of year, using this crossing. The train which struck the deceased was an extra running at 25 to 30 miles an hour without signaling by bell or whistle of its approach.
[3] Given these set of circumstances, the contributory negligence of James W. Horton would be a question for the jury unless the rule which has heretofore existed covering these crossing cases has been modified by section 53a of the Railroad Law. Consol. Laws, c. 49. I take it, from reading the briefs and the opinions below, to be conceded that without this statute there would be ample evidence to justify a recovery. The Appellate Division, however, has given to section 53a a meaning which changes very materially the rules of the common law as they have heretofore existed, and places all the risk of an accident in crossing a railroad track upon the driver of any kind of vehicle. It has been said that, because of the provisions of this section, the plaintiff was guilty of contributory negligence as a matter of law because he did not stop his automobile before crossing at a point where he could have seen the train. This calls for an analysis and interpretation of section 53a.
This section is part of article III, which relates to the construction, operation, and management of railroads. Section 53 provides for signboards, flagmen, and gates at crossings. Then comes section 53a, adopted in 1919 (chapter 438, Laws of 1919), which provides that...
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