Russell v. Fusco

• Decision Date: 16 December 1999
• Parties: 1999 N.Y. Slip Op. 10,671 Michael RUSSELL et al., Respondents, v. Emilo A. FUSCO et al., Defendants, and Delaware and Hudson Railway Company Inc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 798

699 N.Y.S.2d 798

1999 N.Y. Slip Op. 10,671

Michael RUSSELL et al., Respondents, v. Emilo A. FUSCO et al., Defendants and Delaware and Hudson Railway Company Inc., Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 16, 1999.

McNamee, Lochner, Titus & Williams (Scott A. Barbour of counsel), Albany, for appellant.

Eric J. Dickson, Schenectady, for respondents.

Before: CARDONA, P.J., CREW III, SPAIN, GRAFFEO and MUGGLIN, JJ.

GRAFFEO, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered July 10, 1998 in Schenectady County, which, upon reargument, denied a motion by defendant Delaware and Hudson Railway Company Inc. for summary judgment dismissing the complaint against it.

Plaintiff Michael Russell (hereinafter plaintiff) and his wife, derivatively, commenced this negligence action to recover damages for personal injuries he sustained in March 1992 in a collision between his automobile and a train operated by defendant Delaware and Hudson Railway Company Inc. (hereinafter D & H). At the time of the accident, plaintiff was traveling on a private road owned and maintained by defendants Emilo A. Fusco, David Fusco, Rudy Eignor and Paul Vogel (hereinafter collectively referred to as the landowners). Impact with the locomotive occurred as he attempted to cross railroad tracks at an unmarked crossing.

Supreme Court initially granted motions by D & H and the landowners for summary judgment seeking dismissal of plaintiffs' complaint. However, upon plaintiff's motion to reargue, the court modified its previous order by denying D & H's motion for summary judgment. D & H now appeals.

D & H argues that it established as a matter of law that the sole proximate cause of the accident was plaintiff's inattention and that it did not have a duty to sound a whistle as it approached the private crossing. It is undisputed that there were no signs, lights or other markings alerting motorists of the potential hazard at the private crossing. Although D & H stresses plaintiff's awareness of the existence of the crossing, plaintiff testified to the contrary. Plaintiff claimed the dirt and gravel road he traveled was "ruddy" and that he did not notice the tracks during his earlier journeys over the road that morning. Furthermore, plaintiff indicated that although he was proceeding very slowly and cautiously, he did not see the train because the tracks were situated on a crest at an elevation above the roadway and his vision was obstructed by overgrown vegetation at the site of the crossing. Based on the cumulative evidence presented, we find that a triable issue of fact exists as to whether plaintiff's actions were the sole proximate cause of the accident (see, E. Mower & Son v. Consolidated Rail Corp., 249 A.D.2d 809, 671 N.Y.S.2d 833; Miller v. Town of Fenton, 247 A.D.2d 740, 741, 669 N.Y.S.2d 391; cf., Guller v. Consolidated Rail Corp., 242 A.D.2d 283, 661 N.Y.S.2d 42; Vasquez v. Consolidated Rail Corp., 180 A.D.2d 247, 584 N.Y.S.2d 345).

Supreme Court also properly noted the existence of a factual dispute regarding the sounding of the train's whistle to alert plaintiff to the train's proximity to the crossing (see, Ludlam v. Guilford Transp. Indus., 145 A.D.2d 860, 535 N.Y.S.2d 847, appeal dismissed 74 N.Y.2d 733, 544 N.Y.S.2d 818, 543 N.E.2d 83). The train's engineer testified that as he noticed plaintiff's vehicle slowly approaching the crossing, he activated the whistle. Corroboration was provided by a conductor who maintained that he heard the audible signal prior to the collision. In contrast, plaintiff insisted that a whistle was not sounded and a brakeman on the train contradicted his co-workers in stating that he did not hear a whistle before impact.

Although we acknowledge that no common-law duty has been established for railroads operating in New York imposing the standard of care applicable at a public highway crossing to a private crossing (see generally, McDermott v. New York Cent. R.R. Co., 14 A.D.2d 642, 643, 218 N.Y.S.2d 266, lv. denied 10 N.Y.2d 709, 223 N.Y.S.2d 1026, 179 N.E.2d 716), ¹ given the particular concatenation of circumstances in this case, we conclude that a question of fact exists as to whether D & H exercised due care and engaged in reasonable precautions, i.e., a whistled warning, as the train neared the crossing (see generally, Hessner v. D & H Ry. Co., 46 A.D.2d 463, 363 N.Y.S.2d 126). ² Specifically, the train engineer conceded that he observed plaintiff's car approaching the crossing, and in fact, averred that he blew the whistle to alert plaintiff to the train's presence. Moreover, plaintiff testified that he did not hear a train whistle, was not aware of the crossing, having not traversed the tracks for eight years prior to the several trips he made the day of the accident, and asserted that his line of sight was obscured by the contours of the terrain and by brush.

ORDERED that the order is affirmed, with costs.

CARDONA, P.J., SPAIN and MUGGLIN, JJ., concur.

CREW III, J. (dissenting).

Because I believe that...