Lehigh Valley R. Co. v. Quereau

• Decision Date: 19 March 1923
• Docket Number: 192.
• Citation: 289 F. 767
• Parties: LEHIGH VALLEY R. CO. v. QUEREAU et al.
• Court: U.S. Court of Appeals — Second Circuit

289 F. 767

LEHIGH VALLEY R. CO. v. QUEREAU et al.

No. 192.

United States Court of Appeals, Second Circuit.

March 19, 1923

Brainard & Noble, of Auburn, N.Y. (William H. Harding, of Syracuse N.Y., of counsel), for plaintiff in error.

Peter B. Cole, of Syracuse, N.Y. (Thomas Woods, of Syracuse, N.Y of counsel), for defendants in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

The parties will be referred to as below. On October 16, 1918 plaintiffs' intestate, while crossing Rude street, in the village of Weedsport, Cayuga county, N.Y., was struck by a north-bound passenger train and instantly killed. At the time he was driving a horse attached to a buggy with the top up and the side curtains down. Before his advance to the crossing, he had stopped at a house along the highway, 275 feet from the point where he met his death. There he talked with a friend for about 5 minutes. The last seen of him by any eyewitness was his proceeding toward the track, his horse walking. Rude street runs east and west, and there is an embankment of about 12 feet, up which grade he proceeded. The railway tracks run northeast and southwest at this point, and cross the highway at a down grade of about one foot in every 100 feet. There are sharply sloping sides to the roadway of Rude street, and there are no fences along it. The crossing plank projects some 3 or 4 inches above the level of the highway. Rude street crosses the highway at an acute angle so that the deceased, as he approached the crossing, had his back toward the direction from which the train came, to some extent. Looking in the southwesterly direction from which the train came, the deceased's view was obstructed by reason of the position of an apple orchard, some other trees, a cut, bushes and brush along the railroad's right of way, except that for a distance of 38 feet, commencing at a point of about 108 feet west from the railroad crossing, a view could be obtained of a train approaching this highway crossing. But there is a cut or embankment through which the train passed some 635 feet to the south of Rude street. The foliage of trees was dense, and the trees had large, wide-spreading branches, the larger ones ranging from 28 to 44 feet, some of which came within 7 1/2 feet of the passing train. This accident occurred at about 6 o'clock in the evening, a heavy rain was falling, and the wind was blowing from the northwest, with the consequent noise caused by the swaying of the trees. The whistle on the locomotive was not the ordinary type, but was placed thereon by the engineer in charge, and was a duplicate of that which had been used by steamboats navigated on the canal nearby, and therefore it sounded like a steamboat whistle.

There was evidence that the train was running at the rate of 50 miles an hour, down grade, and that the engine was not making steam. There were no street lights or lighted buildings to illuminate the highway, and there were no gates, flagman, or signal bell at the crossing. The deceased, riding alone, was charged with the driving and management of his horse and buggy, and had almost cleared the track when struck. There was evidence by persons near the crossing in a position to hear, and who gave testimony that, although they were paying attention, they did not hear the whistle blown or bell rung for the crossing. There were many witnesses, and some called testified that a whistle was sounded for the crossing. Evidence of persons who were so situated within a short distance of the crossing, who would have heard and who could have heard, had the whistle blown, was sufficient to require the submission to the jury of the question of negligence on the part of the engineer in the operation of the train. Texas & P.R. Co. v. Cody, 166 U.S. 606, 17 Sup.Ct. 703, 41 L.Ed. 1132; Flannelly v. D. & H. Co., 225 U.S. 597, 32 Sup.Ct. 783, 56 L.Ed. 1221, 44 L.R.A. (N.S.) 154.

The physical circumstances at the crossing, together with the fact that the deceased was occupied in driving his horse, accompanied by the presumption that he exercised reasonable care and caution in approaching the railroad crossing, made the question of contributory negligence one of fact for the jury. The burden of proving contributory negligence is upon defendant, and it was bound to show that the deceased did not look or listen. B. & O.R. Co. v. Griffith, 159 U.S. 603, 16 Sup.Ct. 105, 40 L.Ed. 274; B. & P.R.R. Co. v. Landrigan, 191 U.S. 461, 24 Sup.Ct. 137, 48 L.Ed. 262; Texas & Pacific Co. v. Gentry, 163 U.S. 353, 16 Sup.Ct. 1104, 41 L.Ed. 186; No. Pacific R.R. Co. v. Spike, 121 F. 44, 57 C.C.A. 384.

In the answer interposed the defense of res adjudicata is relied upon. It appears that, before the commencement of the action in the United States District Court for the Northern District of New York, the plaintiffs instituted an action in the Supreme Court of the state of New York for the county of Cayuga. That action was brought to trial on October 15, 1917, and after the plaintiffs offered all their proof, on a motion made on behalf of the defendant, a dismissal of the complaint was granted. No appeal was taken from this decision. The record here contains the opinion of the Supreme Court Justice of the state, who said:

'That leaves simply the question as to what situation we are in under the changed rule. The changed rule says, in substance, that the absence of contributory negligence need no longer be proven by the plaintiff, but it is an affirmative defense, to be pleaded and proven by the defendant. It is pleaded, and in my judgment it is proven, by the plaintiff herself. That being so, I apprehend the defendant has an absolute right to stand upon the testimony which is in the case, which establishes contributory negligence, and avail itself of it on a motion of this character. I cannot conceive that there would be any reason in denying the motion at this time and telling the defendant to put in its case, and then grant a nonsuit at the close of defendant's case upon the same state of facts. I must grant this motion simply and only upon the ground that the facts established by the plaintiff herself affirmatively show that the plaintiff's intestate came to his death by reason of his own negligence which contributed to and brought about the injury from which he died. The motion is granted.'

An order was entered directing the dismissal, and that a judgment be entered accordingly. There were recited in that order the grounds upon which the motion was made, which were, first, that the cause of action pleaded in the complaint had not been established; second, that the defendant had not been shown negligent; third, that the defendant's negligence was not the proximate cause of the accident; and, fourth, that the plaintiffs' intestate was guilty of contributory negligence. And the judgment which was entered recited the same grounds as the legal reasons advanced by the defendant for judgment, and then directed that a nonsuit be granted and costs be awarded against the plaintiffs. Neither the order nor the judgment, however, stated that all the reasons advanced by the defendant for a dismissal were adopted or approved. A dismissal at the end of the plaintiff's case has always been regarded as caused by a failure of proof, and therefore it is not on the merits, and is not a bar to a future action for the same cause or subject-matter. Ploxin v. B.H.R. Co. (C.C.A.) 261 F. 854. But where judgment is directed after the defendant has rested its case, and there is a mere varying of reasons assigned for recovery in the future action, the cause of action remains the same, and the prior disposition of the case is a bar to the future action. United States v. California & Ore. Lands Co., 192 U.S. 355, 24 Sup.Ct. 266, 48 L.Ed. 476; Nauyalis v. Phila. & Reading Coal & Iron Co. (C.C.A.) 270 F. 93.

The effect of a decision such as that rendered at the trial in the Supreme Court action is controlled by the Code of Civil Procedure of that state. Section 841-b provides:

'On the trial of any action to recover damages for causing death the contributory negligence of the person killed shall be a defense, to be pleaded and proven by the defendant.' Section 1209 of the Code of Civil Procedure provides:

'A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits.'

Section 1237 of the Code prescribes what the judgment roll shall consist of and the papers contained therein, and indicates where inquiry must be made if there was a dismissal on the merits; and provides:

'The clerk, upon entering final judgment, must immediately file the judgment roll, which must consist, except where special provision is

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