Morris v. Lake Shore & M. S. Ry. Co.

• Decision Date: 14 January 1896
• Citation: 42 N.E. 579,148 N.Y. 182
• Parties: MORRIS v. LAKE SHORE & M. S. RY. CO.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 182

42 N.E. 579

MORRIS

v.LAKE SHORE & M. S. RY. CO.

Court of Appeals of New York.

Jan. 14, 1896.

Appeal from supreme court, general term, Fifth department.

Action by Laurella Morris, as administratrix, against the Lake Shore & Michigan Southern Railway Company. From a judgment of the general term (29 N. Y. Supp. 1147, mem.) affirming a judgment for plaintiff, defendant appeals. Reversed.

James F. Gluck, for appellant.

Ansley Wilcox, for respondent.

MARTIN, J.

This was an action to recover damages sustained by the death of the plaintiff's intestate, and it was based upon the alleged negligence of the defendant. The decedent resided upon a farm in the town of Ripley, Chautauqua county. The defendant's road passed through the farm, and over the railroad was a farm crossing, which had been provided by the defendant. The decedent's house and barns were upon one side of the railroad, while his pasture was upon the opposite side. On the 25th day of August, 1881, the decedent was struck and killed by a passing train at or near the crossing. At the time he was driving his cows from the pasture to his house or barns. The defendant's right of way was 66 feet in width, and there was a gate on each side at the crossing. The decedent's house, where he had lived many years, was in sight of the track; and he was familiar with the time when the defendant's trains passed his place. The train which caused the accident passed over this crossing at a high rate of speed at about the same time each day, and the decedent knew that it was often late. The grade and tracks of the railroad in that vicinity were from 3 to 6 1/2 feet above the surface of the adjacent land. There were two tracks of the usual width, about 8 feet apart. The train was upon the north track, and the decedent approached the road from the south. The north track being about 37 feet from the south gate, the decedent had to travel that distance before reaching the place where the injury occurred. The track was straight from the crossing west for about 1,450 feet, and a person on the south track could see a train coming from the west about that distance, and could be seen from the engine the same distance; but, if at the south gate, he could see the train and be seen by the engineer for only about 556 feet. The evidence is to the effect that at the time or immediately preceding the accident the decedent was trying to hurry his cows across the defendant's railroad in front of the approaching train, and that the cows were huddled together. The engineer could have seen the cows on the track when he was about 1,450 feet from the crossing, if they were there at that time; but there is no evidence that they were, and any conclusion to that effect was necessarily based upon mere speculation or conjecture.

The plaintiff's witnesses testified that no bell was rung or whistle sounded as the train approached the Dixon crossing, which was 556 feet west of the place of the accident. This was denied. So far as there was any evidence upon the subject, it tended to show that when the accident...