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

• Decision Date: 15 January 1889
• Citation: 112 N.Y. 234,19 N.E. 678
• Parties: PALMER et al. v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 234

19 N.E. 678

PALMER et al.

v.NEW YORK CENT. & H. R. R. CO.¹

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, Fifth department.

The plaintiffs, William D. Palmer and another, sue as the administrators of A. H. Foster, who, while driving along a highway crossed by the defendant's road, was run over by its engine, and killed. The company had for many years provided gates at this crossing on each side of its track, to be shut when locomotives or trains were passing, and to be open at other times. At the time in question the gates were open. The case was tried at the Genesee circuit, and a verdict of $1,819.21 rendered for the plaintiff. A motion for a new trial was denied by the trial judge, and upon appeal to the general term the judgment upon the verdict and the order denying a new trial were affirmed. Further facts are stated in the opinion.

Mr. Camp, for appellant.

Tyrrell & Ballard, for respondents.

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

The points made by the appellant are that the court erred (1) in refusing to grant defendant's motion for a nonsuit; (2) in refusing to charge as requested by it, viz.: ‘That the fact that the gates were now down was not such an assurance of safety to the intestate as obviated the necessity of using his eyes and ears to ascertain whether a train or engine was approaching, and if, notwithstanding the condition of the gates, he might have seen or heard the engine if he had looked or listened, and as he did not, the plaintiff cannot recover;’ and (3) that the damages allowed by the jury were excessive, and entitle it to a new trial. The last proposition requires no consideration, for the question was exclusively for the jury and the supreme court. The motion for a nonsuit was reserved until after the defendant put in evidence to meet the plaintiffs' case, and the special ground then urged was that it affirmatively appeared that the plaintiffs' intestate was guilty of contributory negligence. It appeared in evidence that Foster, on the 24th of May, 1884, was traveling southward with a horse and covered buggy at the rate of from four to five miles an hour, along a highway known as ‘Walnut Street,’ in the village of Batavia. The street ran north and south, and in his way was crossed by defendant's road of five tracks running east and west, at an angle with the street of 43 degrees. He passed three of the tracks in safety, but while on, and in part over, the next, was struck by defendant's locomotive, which was running along that track westerly, ‘very fast,’ or from 20 to 25 miles an hour, and without signal. He and his horse were at once killed, and the buggy broken in pieces. This is a not unusual narrative in collision cases, but the attending circumstances were somewhat exceptional. The engine was attached to no train or car. It was small in size,-much smaller than the ordinary locomotive. It was neither designed nor used for passenger or freight business. It was running on no schedule time. It was in charge of no donductor. It carried one person,-the superintendent of the division,-and was subject wholly to his direction. It was manned by an engineer and fireman, but the construction of the engine was such that the cab occupied by the superintendent was over the boiler at the fore end of the engine, and the engineer and fireman were behind. Their view in front was thus wholly obstructed, except as the lines of vision were outside of the cab; and down and along the track they could have a sight of nothing except as they leaned out and away from their place. In fact, as each testifies, neither the fireman nor engineer saw the man, horse, or buggy until the moment of the collision. The bell, instead of being on the top of the engine, was, as some testify, behind and below it, or, as the engineer says, ‘on the tail-end of the engine, on the top of the tender.’ It was of a tone different from that of ordinary locomotives, and the machine itself moved with little noise, and with less than that of a train engine. It was used for the business of the occupant, either of observation or travel, and was so constructed as to facilitate either. As its use and construction differed from that of ordinary locomotives, so did its management. Instead of obedience to the statute, which requires the bell or whistle to be rung or sounded at a given distance from the place where the railroad shall cross any traveled public road or street, and at intervals until it shall have crossed that road or street, and so makes the presence of the crossing an imperative order to the managers of the engine, it was made the duty of the engineer to below the whistle only when notified to do so by his passenger, the superintendent, and in this instance such direction was given only when quite near the crossing; and by the time the brakes were set, and steam shut off, the engine was ‘upon’ the intestate. The plaintiffs' witnesses show that at the same moment the bell was for the first time rung. One of them, watching the locomotive, ‘did not notice any bell ringing until whistle began to blow, about half way between the bridge and the crossing; then the bell rang and whistle blew.’ This was a short distance from the point of danger. Concerning the bell there was evidence from the engineer and fireman to the contrary, but none from the superintendent, who was not called to testify. There was evidence enough to warrant the jury in finding that no signal of any kind was given. They would have been compelled to say that the construction of the locomotive was such as to render vigilance on the part of the employes almost, if not wholly, useless; that the position of the bell was less favorable to the distribution of should than the place assigned to it by statute; and that the engine itself gave little or no notice of its approach. The flag-man also, who for 25 years had been stationed at the crossing, was absent. This was conceded.

But, besides these things, which are to be regarded as omissions or departures from the ordinary, and in some respects required, methods of the defendant's business, in giving audible or visible signals of approach, and indicating negligence on its part, there are affirmative acts, not only compelling the same conclusion, but directly tending to influence the conduct of the wayfarer, and indeed expressly designed to do so. The defendant, ‘for the better protection of life,’ and to ‘promote the safer and better management of its road,’ either of its own volition or under the command of law, (Laws 1884, c. 439, § 3,) had erected gates across Walnut street on either side of its tracks, and has stationed a person there ‘to open or close such gates when an engine or train passed.’ The duty of the company was imperative, and it is obvious that an open gate was a direct and explicit assurance to the traveler that neither train nor engine was rendering the way dangerous,-that none was passing. A closed gate was an obstruction preventing access to the road; an open gate was equally positive in the implication to be derived from it that the way was safe. Nothing less could be implied, and no other conclusion could be drawn from that circumstance. The silence of the bell and whistle was an indication that no train or locomotive was within 80 rods of the crossing; the open gate an affirmative and explicit declaration and representation that neither train nor locomotive was approaching with intent to pass. The way then was open to the intestate, and, as the highway was straight, that fact was apparent to him, not only when he reached the track, but for a long distance off. He had a right to rely to a certain extent upon that representation. Stapley v. Railway, L. R. 1 Exch. 21; Glushing v. Sharp, 96 N. Y. 676. It is difficult, therefore, to see how his death can be attributed to any other cause than the negligent acts of the defendant; but if there is room for a different inference, there is not enough of it to make the question one of law. He could not rush heedlessly on to danger, and throw the result upon the defendant; but the...