Oldenberg v. New York Cent. & H.R.R. Co.

• Decision Date: 10 March 1891
• Citation: 124 N.Y. 414,26 N.E. 1021
• Parties: OLDENBERG et al. v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 414

26 N.E. 1021

OLDENBERG et al.

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York,

Second Division.

March 10, 1891.

Appeal from a judgment of the general term of the superior court of Buffalo, affirming a judgment entered upon the verdict of a jury, and also affirming an order denying a motion for a new trial. Action to recover damages from the defendant for causing the death of plaintiffs' intestate by negligently running over him as he was walking upon a public street at a point where it crossed a railroad track at grade. No question was raised as to the negligence of the defendant, and the sole controversy upon this appeal is in relation to the alleged contributory negligence of the deceased.

James F. Gluck, for appellant.

Isaac S. Signor, for respondent.

VANN, J., ( after stating the facts as above.)

Chicago street, in the city of Buffalo, runs substantially north and south, and is crossed at right angles by three railroad tracks operated by the defendant. The distance from the north rail of the north track to the south rail of the south track is 28 feet and 5 inches. Each of the tracks is 4 feet 8 1/3 inches between the rails. It is 7 feet 3 1/2 inches from the south rail of the north track to the north rail of the middle track, and 7 feet from the south rail of the middle track to the north rail of the south track. There are safety gates at this crossing, 51 feet and 6 inches apart, operated by a gateman stationed at the south-west corner. On each side of the street is a sidewalk substantially 6 feet wide, and the distance from one sidewalk to the other is about 50 feet. The west sidewalk between the gates is also crossed by two switch tracks, one north and the other south of the main tracks already mentioned, and extending about half-way across the street before they are merged in the outer main tracks. On the 15th of September, 1888, at about 1 o'clock in the afternoon, Charles Oldenberg, the plaintiffs' intestate, a man of mature years, was walking south on the west side of Chicago street, and as he approached this crossing the gates were down to enable a passenger train of four or five coaches to pass towards the west on the north track. He stopped until the last car had crossed, and as the gates began to rise he went on. At the same time a team started to cross from the south, the gateman having shouted to it to go ahead. It went very slowly. Until Oldenberg had passed over the middle track he could see nothing south thereof, and west of the sidewalk on which he was walking, because his view in that direction was cut off by 15 passenger coaches standing on the middle track, and extending westward for a block and a half. The most easterly of these coaches reached half-way across the west sidewalk, and projected 2 feet beyond the rails of the track upon either side. Thus his view to the south-west was shut off until he had passed by the end of the coach, which would place him at a point 2 feet south of the middle track. Until he reached this point, which was only 5 feet from the south track he could see substantially no part of that track west of the sidewalk. As he reached this point, walking rather fast, and having no knowledge of the locality, a locomotive, with a tender attached, was almost upon him, backing eastwardly on the south track at the rate of 10 miles an hour. The bell was probably ringing, but the passenger train was not out of hearing, and there was some confusion of sounds. Had he stopped and looked towards the west at the instant that he reached said point, he could have seen the danger in time to avoid it, but less than 2 steps forward brought him in contact with the cross-beam of the tender, which projected about 2 feet beyond the rails of the track on each side, and he was thrown under the wheels and killed. He did not look towards the west at the critical moment when he could have seen the engine, but went with his head down, as if looking at the sidewalk, which was rough, and the planks composing it very uneven. The gateman had begun to lower...