Lewis v. Long Island R. Co.

• Decision Date: 27 February 1900
• Citation: 162 N.Y. 52,56 N.E. 548
• Parties: LEWIS v. LONG ISLAND R. CO.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 52

56 N.E. 548

LEWIS

v.LONG ISLAND R. CO.

Court of Appeals of New York.

Feb. 27, 1900.

Appeal from supreme court, appellate division, Second department.

Action by John J. Lewis, an infant, by Jeanette L. Lewis, his guardian ad litem, against the Long Island Railroad Company. From a judgment of the appellate division (53 N. Y. Supp. 1107) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Benjamin F. Tracy and William J. Kelly, for appellant.

Albert A. Wray, for respondent.

MARTIN, J.

The allowance of this appeal does not enable us to examine or determine whether there is any or sufficient evidence to sustain the verdict, inasmuch as the affirmance by the appellate division was unanimous. Reed v. McCord, 160 N. Y. 330, 54 N. E. 737. Therefore the questions of the defendant's negligence and the plaintiff's freedom from contributory negligence cannot be reviewed by this court. The only questions that can be passed upon by us are those raised by the defendant's exceptions to rulings of the court upon the admission or rejection of evidence, and to its charge or refusals to charge as requested by the defendant. To a proper understanding of these exceptions, a brief statement of the facts seems necessary.

This action was for negligence. The plaintiff was injured in a collision which occurred at about 2 o'clock in the afternoon of the 31st day of May, 1897, at a grade crossing of the Merrick road over the defendant's track. The plaintiff, with a number of associates, engaged a tallyho coach drawn by six horses to convey them from Brooklyn to Valley Stream and return, a distance of about 30 miles. The horses were gentle and the coach was in order. There were 21 persons upon and in it at the time of the accident. The trip was to be made in pursuance of a contract with one Hamilton, a liveryman, to transport the party the round trip for $30; he to furnish the coach and teams, and send them in charge of a competent driver. The teams and coach were entirely under the control of Hamilton's employés, except that the plaintiff and his associates were perhaps authorized to determine where they would stop for lunch. The Merrick road, over which this excursion was to be made, is a smooth, macadamized highway to the extent of 18 feet in width, upon which there is a great amount of travel. The right of way is about 50 feet in width, and outside of the macadamized portion there are ditches and earth, which are overgrown with grass and weeds, except about 4 feet on each side next to the macadamized portion. At the place of the accident the crossing was planked, so that the spaces between the rails, the rails, and the macadamized road on each side of the track presented a smooth, even appearance; the top of the rails being even with the roadbed and planking. There was a signboard beyond the crossing, which was to some extent obscured by telegraph poles between it and the track. This board, instead of being maintained across the street as required by the statute, was placed upon a single post at the side of, and 6 feet from, the edge of the macadamized road. The words painted upon the signboard were not those required by the statute, nor were they of the size prescribed. Section 33 of the railroad law requires that such signboards shall be placed, well supported, and constantly maintained ‘across' each traveled public road or street, where the same is crossed by a railroad at grade; that they shall be so elevated as not to obstruct the travel and so as to be easily seen by travelers, and that on each side shall be painted in capital letters, each at least 9 inches in length and of suitable width, the words: ‘Railroad Crossing. Look Out for the Cars.’ The board which was erected at this place was upon a single post, to which three boards were fastened, one at right angles with the post; the other two extending from the ends of the first to and beyond the post, crossing each other thereon. Upon these boards were painted the words: ‘Danger, Railroad Crossing.’ On the side of the road, back of, and extending a considerable distance beyond, the signboard, were trees and underbrush from 25 to 30 feet high. The proof, while in conflict as to the distance this board could be seen by travelers, tended to show that it could be seen by one who knew of its existence for a considerable distance, while by a stranger who was not aware of its presence it would not be readily seen or noticed. There were no gates or flagman at this crossing. Upon one of the telegraph poles, standing near the signboard, there was an electric signal bell about 10 feet above the ground.

For some distance from the crossing and up to it there are trees, woods, and underbrush on both sides of the highway, which upon the left side extend to within 18 feet of the crossing, obscuring the view of the track from the highway. At a point in the center of the highway 34 feet from the track, it could be seen for nearly 211 feet from the crossing, and a clear and unobstructed view could be obtained 24 1/2 feet from the nearest rail. It was 70 feet from the rear of the coach to the heads of the leaders in the team. While previously there had been considerable jollity among the young people upon the coach, including the blowing of horns and the sounding of a bugle, at the time of the accident no unusual noise was being made, and the team was going slowly, some of the horses upon a walk, and the others upon a slow trot. The plaintiff was seated upon the top of the coach, where he could observe what came within the line of his vision. He had never been over the road before, and knew nothing of the location of the railroad or its crossings. At the coach approached the crossing he looked both ways, but saw nothing to indicate its presence or any approaching danger. The train came from the left of the highway, upon which side there were woods obscuring the plaintiff's view. The locomotive was not using steam, and the sound of the train was obstructed or interfered with by the woods. The track was wet from previous rain. A number of witnesses testified that they were in a position to have heard the sounding of the whistle or the ringing of the bell if it had been blown or rung, but that they did not hear either. Upon the other hand, the defendant's witnesses testified that the engine whistled a number of times at different stations and crossings within a few miles of the point where the accident occurred, and that it whistled a quarter of a mile away. They also testified that the engine bell was rung from that distance to the crossing. One of the defendant's employés, or, rather, a student fireman upon the engine, testified that the whistle was not blown until the train was within 400 feet of the crossing, and that the fireman was lazily ringing the bell for about 80 rods, but that it did not ring loudly, for the clapper just touched the sides with a slow motion. There was also proof that the automatic signal near the crossing could be heard for a distance of a quarter of a mile when it rang, but that it did not ring on the approach of this train. The train was moving 35 miles an hour, or at the rate of over 51 feet per second. The coach was going from 5 to 7 miles an hour, or from about 7 to 10 feet per second. As the coach approached, no one upon it discovered the crossing or the track until the horses were within about 10 feet of the rails. At that time the driver was within 50 feet of the track, the plaintiff 65 feet away, and their view of the approaching train was obstructed by the woods. No sound of its approach had been previously heard. At that time, however, one of the party, who stood upon the highest part of the coach, saw the train, cried out, ‘Here comes a train!’ and immediately jumped from the side of the coach to the road. He struck the ground about 30 feet from the nearest rail. When the warning was shouted by the young man who jumped off, the leaders were over, the body team was just crossing, and the wheelers were upon the track. Upon discovering the situation, to save himself and his passengers, the driver seized his whip and lashed the team into a jump. The train was late, and did not slacken its speed until it struck the coach near the middle, demolishing it, throwing the passengers to the ground, and killing or maiming most of them. The plaintiff was thrown a distance of 124 feet, and landed upon a sand pile. He sustained a fracture of the shoulder blade, and various bruises and contusions upon his head and other portions of his body. The defendant's engineer testified that he could stop the train within 500 feet, but it was not stopped until it had passed the crossing, a distance of 775 feet. The team was across and the coach was nearly across the track when the collision occurred. The engineer of the defendant saw the horses as they came from behind the woods, but they passed over a distance of 24 feet after he saw them before he applied the brakes or undertook to stop the train. He used no sand upon the track, but reversed the engine, which locked the wheels so that they slid, and he train did not stop as soon as it otherwise would. The plaintiff's associates who made the contract for the team selected the coach to be furnished for this excursion, and it was decorated with bunting by them. The young men who hired this equipage took a number of young women with them. No particular place had been selected where their luncheon was to be eaten, and previous to the time of the accident they had been looking for a place.

Having thus briefly stated the facts, so far as necessary to a proper understanding of the questions involved, we are brought to the consideration of some of the exceptions taken upon the trial. While we have examined them all, we find but few that require special consideration.

The first and only serious question raised by the exceptions of the defendant relates to the charge of the learned trial...