New York, S. & W.R. Co. v. Moore

• Decision Date: 08 January 1901
• Docket Number: 31.
• Citation: 105 F. 725
• Court: U.S. Court of Appeals — Second Circuit
• Parties: NEW YORK, S. & W.R. CO. v. MOORE.

105 F. 725

NEW YORK, S. & W.R. CO. v. MOORE.

No. 31.

United States Court of Appeals, Second Circuit.

January 8, 1901

Leopold Wallach, for plaintiff in error.

G. A Clement, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

Of the assignments of error those most deserving consideration are the ones which raise the question whether, by reason of the contributory negligence of the plaintiff, the defendant was entitled to have a verdict directed in its behalf.

The action was brought to recover for injuries received by the plaintiff while crossing the railroad track of the defendant at its intersection with a highway in the village of Unionville, Orange county, N.Y. The plaintiff was proceeding along the highway from the west in a milk wagon, driving a pair of horses. His wagon was struck while crossing the track by a train of the defendant road station, about 900 feet away. The railroad at that crossing runs north and south intersecting the highway at a right angle, but at a short distance from the crossing at the south curves sharply to the eastward. Approaching the crossing from the west the view of the railroad to the southward is obstructed for a considerable distance. The highway ascends as it nears the crossing. Near the track, obstructing the view southerly, is a building known as a 'feed store,' and between the feed store and the railway track there is a switch track. At the time of the accident a box car was standing at the west side of the crossing on the switch track. The accident took place about 9 o'clock in the forenoon of a clear day.

Testimony was introduced in behalf of the plaintiff tending to show that the train was running much faster than usual; that its speed was 35 or 40 miles an hour; and that no whistle was sounded or other signal given of its approach. Several witnesses testified that in approaching the crossing from the direction in which the plaintiff was driving the railroad was hidden from view for a distance of 20 rods or further, and that a train coming from the south could not be seen until the horses were practically upon the track. Dr. Dennie testified as follows:

'If I am driving east, the view from the crossing of approaching trains on the railroad south of the crossing is obstructed in the center of the street, and I cannot see the train until I get there, nearly or about on the railroad track. I am speaking of the locality generally independent of the box car.'

Dr. Nugent testified as follows:

'I have occasion to go over the crossing, and did have at that time, several times a day. The view of that crossing, in approaching it, is obscured all the way down from the corporation limits, half a mile perhaps. I watch the crossing very closely for self-preservation; and I think, with my carriage, when my horses' feet are two or three feet west of the west track, I can get a sight by looking that way, and I watch, because I do not want to be hurt. I could not say with reference to a car upon the switch. That would obstruct the view a little more.'

The father of the plaintiff, who visited the scene shortly after the accident, testified as follows:

'I took an observation carefully to satisfy myself at that time,-- to see what chance the boy had for his life, if any. That is the purpose I went for, and I looked, and that team had to be upon the track to see the train coming, with that car there. They had to be right on the track.'

Mr. Clark, a farmer who saw the accident, testified:

'With the car upon that switch, in driving up from the west, the view would be further obstructed, and, under these circumstances, a person would have to be full on the track before a view could be had of the tract and approaching train from the south.'

According to the testimony of the plaintiff himself, he knew that the train was due at about the time he proposed crossing the track. He testified that he looked and listened as he approached; that he looked at his watch, probably 20 rods back, and found it was then 12 minutes past the...