Kawacz v. Delaware, L.&W.R. Co.
| Decision Date | 03 May 1932 |
| Citation | 181 N.E. 87,259 N.Y. 166 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | KAWACZ v. DELAWARE, L. & W. R. CO. |
OPINION TEXT STARTS HERE
Action by Angeline Kawacz, administratrix, etc., of the estate of Frank Kawacz, deceased, against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff on a jury's verdict, and from a judgment of affirmance by the Appellate Division (233 App. Div. 422, 254 N. Y. S. 270), defendant appeals.
Judgments reversed, and complaint dismissed.
Appeal from Supreme Court, Appellate Division, Fourth Department.
Evan Hollister, of Buffalo, for appellant.
George E. Phillies, Frank G. Raichle and J. C. Randal, all of Buffalo, for respondent.
On a summer morning long after daylight one of defendant's milk trains was traveling on its daily run in a westerly direction, and at the same time Frank Kawacz, employed by defendant as a trackwalker and section hand, was proceeding on foot, as was his custom and part of his duty several times a week, in an easterly direction on the same track. The train was five minutes late and Kawacz knew it. They collided and, as a result of Kawacz's death, his estate has recovered a substantial judgment.
The engineer, who was plaintiff's witness, testified that, at a distance of six hundred feet, he first saw a man on the track and blew his whistle. Then the man seemed to raise his head and, although he continued to walk toward the train, the engineer thought that he had heard the whistle. At a distance of one hundred feet the train slowed to make the stop at a milk station but, as the man gave no indication of leaving the track and as the engineer for the first time then realized that he might remain, at a distance of sixty feet the emergency brakes were applied. Only then did Kawacz make any effort to avoid the collision, but his attempt came too late. Whether he failed previously to see the train or, seeing it, endeavored to cut the time of his departure from the track by the finest margin cannot be known. In any event the jury on the trial of this action under the Federal Employers' Liability Act (45 USCA §§ 51-59)determined that decedent's negligence contributed to his death. That part of the verdict is fully supported by evidence, but we are of the opinion that the judgment must be reversed for the reason that, under our own decisions, the engineer was free from negligence and that, under the federal cases, decedent assumed the risk.
Perhaps the testimony of some of plaintiff's witnesses other than the engineer may be regarded as rising to the level of a contradiction of his testimony in relation to the blowing of the whistle and thus as creating an issue of fact on that branch of the case. Even if we assume that no signal was sounded, still under all the other facts most favorable to plaintiff's case no omission of any duty owed by the engineer to the deceased has been shown. From the record he does not appear to be a man of abnormal...
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