Rocco v. Lehigh Valley R. Co.

• Decision Date: 26 April 1932
• Citation: 259 N.Y. 51,181 N.E. 11
• Parties: ROCCO v. LEHIGH VALLEY R. CO.
• Court: New York Court of Appeals Court of Appeals

259 N.Y. 51

181 N.E. 11

ROCCO

v.LEHIGH VALLEY R. CO.

Court of Appeals of New York.

April 26, 1932.

Action by Mary Rocco, as executrix of the estate of Joseph Rocco, deceased, against the Lehigh Valley Railroad Company. Judgment of trial term entered on a verdict of the jury in plaintiff's favor (135 Misc. Rep. 639, 239 N. Y. S. 157) was affirmed by the Appellate Division (231 App. Div. 323,248 N. Y. S. 13), and defendant appeals.

Judgment of Appellate Division and Trial Term reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, Third department.

Harold E. Simpson, of Ithaca, for appellant.

Daniel Crowley and Louis K. Thaler, both of Ithaca, for respondent.

O'BRIEN, J.

On the single track branch of defendant's railroad extending northerly from Ithaca to Auburn, Joseph Rocco was employed as a track inspector. His duties required him to ride a tricycle speeder fitted to the rails and propelled by hand and foot. Each day he was scheduled to leave Ithaca at 3:30 p. m., inspect the track to Auburn and return. On December 8, 1927, many washouts and landslides had occurred on this track, and the south-bound train due at Ithaca at 12:17 p. m. was running more than three hours behind time. Without inquiry relative to the location of this train, Rocco left Ithaca for the north on his schedule, and within a few minutes encountered the south-bound train headon and was killed. The jury, as in the case of Kawacz v. D., L. & W. R. R. Co. (259 N. Y. 71, 181 N. E. 52), herewith decided, held that decedent's negligence contributed to his death, but under the Federal Employers' Liability Act (45 USCA §§ 51-59) apportioned the damage. Our opinion is that the negligence of deceased was the sole and proximate cause of his death.

The train with which Rocco collided had left Ludlowville,the last reporting station north of Ithaca and eight miles distant therefrom, at 3:14. Inquiry by him, previous to his departure from Ithaca, would have revealed to him the fact that somewhere on that eight-mile stretch of track, which he was about to traverse, was this belated train. His failure to discover this fact constitutes in itself, not only the negligence which the verdict imputes to him, but also a violation of a rule of the road which had existed for more than seven years and of which he had knowledge. It provided that, before track inspectors should occupy the track with speeders, they should ascertain from the telegraph operators the locations of approaching trains in all...