Judson v. Cent. Vermont R. Co.

• Decision Date: 18 April 1899
• Citation: 158 N.Y. 597,53 N.E. 514
• Parties: JUDSON v. CENTRAL VERMONT R. CO.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 597

53 N.E. 514

JUDSON

v.CENTRAL VERMONT R. CO.

Court of Appeals of New York.

April 18, 1899.

Appeal from supreme court, general term, Third department.

Action by Charles H. Judson against the Central Vermont Railroad Company. From an order of the general term of the supreme court, which reversed a judgment entered upon a verdict, and also an order denying a new trial (36 N. Y. Supp. 83), plaintiff appeals. Reversed.

Gray and O'Brien, JJ., dissenting.

C. A. Kellogg, for appellant.

Louis Hasbrouck, for respondent.

MARTIN, J.

Before reaching the merits of this appeal, we are confronted with the question whether the record before us is sufficient to authorize this court to examine and determine the questions of law involved in the decision of the general term. At the close of the plaintiff's evidence, the defendant moved for a nonsuit, upon the grounds that the plaintiff had failed to show his freedom from contributory negligence and had not established the negligence of the defendant. This motion was denied, and the defendant excepted. When the testimony was closed, the defendant renewed its motion, upon substantially the same grounds; and the same ruling, and an exception, followed. The case was then submitted to the jury, which found for the plaintiff. The defendant thereupon moved, upon the minutes of the court, to set aside the verdict, and for a new trial, upon the exceptions, and upon the ground that the verdict was excessive and contrary to the evidence. That motion was denied, and an exception taken. The defendant subsequently appealed to the general term of the supreme court in the Third department from the judgment and the order denying its motion for a new trial, where they were reversed, and a new trial granted. The order of the general term omitted to state the grounds upon which the reversal was based, so that, as it then stood, we would have had no power to entertain this appeal. Chapman v. Comstock, 134 N. Y. 509, 31 N. E. 876;Mickee v. Machine Co., 144 N. Y. 613, 39 N. E. 650;Hoes v. Electric Co., 150 N. Y. 87, 44 N. E. 963;Henavie v. Railroad Co., 154 N. Y. 278, 48 N. E. 525. That order was made at the December term, 1895. Subsequently, and in 1896, the plaintiff applied to the appellate division of the same court, in the same department, for, and obtained, an order amending the order of reversal nunc pro tunc, so as to provide that the judgment and order denying the motion for a new trial ‘be, and each of them hereby is, reversed, upon questions of law only, the court having examined the facts, and found no error therein, and a new trial ordered, with costs to abide the event.’ Thus, two questions arise as to the practice or procedure adopted in this case: (1) Whether the appellate division had jurisdiction to grant the order amending the order of the general term; (2) whether the order, as amended, was sufficient to authorize the court of appeals to review the decision of that court.

The constitution, as amended in 1894, which went into effect January 1, 1895, declares: ‘From and after the last day of December, one thousand eight hundred and ninety-five, the appellate division shall have the jurisdiction now exercised by the supreme court at its general terms, * * * and such additional jurisdiction as may be conferred by the legislature.’ Const. art. 6, § 2. The statute is to the same effect. Code Civ. Proc. § 190. In Hopkins v. Clark, 149 N. Y. 329, 331,43 N. E. 861, these provisions of the constitution and statute were under consideration, so far as they related to the general term of the New York court of common pleas; and it was there held that the appellate division in the First department had jurisdiction to grant a motion for, and to hear a reargument of, an appeal decided by that court. In delivering the opinion in that case, Judge Haight said: ‘The general term of the court of common pleas, during its existence, had jurisdiction to order and hear a reargument. The jurisdiction exercised by it is now by express terms vested in the appellate division, and it may now make all the orders, judgments, and decrees that formerly could have been made by that court.’ The principle of that case is decisive of the question under consideration. We have no doubt that the appellate division had jurisdiction to make any order which could have been properly made by the general term. It having had jurisdiction to make the amendatory order, and there having been no appeal therefrom, it must be regarded as valid and controlling in this case. Any other construction of these provisions of the constitution and statute would result in confusion, and in many cases in great hardship to parties. In this case, unless the appellate division had jurisdiction to make this order, the plaintiff's right to review the judgment of the general term would be very seriously impaired, as the order of that court reversing the plaintiff's judgment was made at the last term held by it, and presumptively the plaintiff had no opportunity to apply to it for a modification of the order before the court had gone out of existence.

The remaining question upon this branch of the case is whether the order as amended is sufficient to authorize a review of the decision of the general term. The principle upon which the cases first cited are based is that, where an order simply discloses that the reversal was upon the law, there is nothing to show that the question whether the verdict was against the weight of evidence was passed upon; and, if this court should reverse the decision of the general term, the respondent would have a judgment against it, without having the question as to the weight or sufficiency of the evidence considered. So that the precise point to be determined is whether the order in this case shows that that question was considered by the general term. It, in effect, declares that the court examined the facts, and found no error therein. This necessarily included the questions of the sufficiency of the evidence, and whether the verdict was against its weight, and was equivalent to determining that the order should be affirmed upon the facts, and reversed upon questions of law only, and, hence, was sufficient within the principle of the cited authorities. Thus we are brought to the consideration of the merits of this appeal. The action was to recover damages for personal injuries occasioned by a collision between a wagon, upon which the plaintiff was riding, and a train of freight cars upon a railroad operated by the defendant. The accident occurred on the evening of November 2, 1893, at about half past 6 o'clock. The plaintiff attempted to drive across the defendant's track at the Main street crossing in the village of Norwood, N. Y. The railroad runs through the village in an easterly and westerly direction. Main is the principal street in the village, and crosses the defendant's track substantially at right angles. While only one of its tracks extends across the street, yet, upon either side, there are other tracks employed by the defendant for yard and switching purposes. It was dark when the accident occurred. The plaintiff started from a point in Main street about 200 feet south of the crossing, and approached it with his horses upon a slow trot. There was no box upon the wagon, but there was a platform composed of planks laid upon bolsters, upon which the plaintiff sat sidewise, facing towards the west. His back was partially towards the east, so that he had to turn his head to look in that direction. There were buildings on both sides of the street to within 40 feet of the track, and, consequently, the plaintiff could not see up or down the railroad until he reached a point where his view was unobstructed by the buildings. He was listening as he approached, and thought he heard the whistle of a train coming from the west. He continued to listen, and, as soon as he reached a point where he could see the tracks, he looked in both directions. On the west he saw an engine about 150 feet from the crossing, with its headlight facing it. On the east he could discover no moving train, but saw lights, the nearest of which was about 25 rods distant. Satisfying himself that no train was approaching, he made no stop. When he again looked east, his horses were upon the rails, and he then saw the rear end of a moving freight car near the crossing. He struck his horses, a collision followed, and he was thrown from the...