Scaggs v. President

• Decision Date: 26 February 1895
• Parties: SCAGGS v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO.
• Court: New York Court of Appeals Court of Appeals

145 N.Y. 201

39 N.E. 716

SCAGGS

v.PRESIDENT, ETC., OF DELAWARE & H. CANAL CO.

Court of Appeals of New York.

Feb. 26, 1895.

Appeal from supreme court, general term, Third department.

Action by Kate A. Scaggs, administratrix, against the president, managers, and company of the Delaware & Hudson Canal Company. There was a reversal by the general term (26 N. Y. Supp. 323) of a judgment of nonsuit, and from an order granting a new trial defendant appeals. Order reversed, and judgment affirmed.

The plaintiff brought this action to recover damages from the defendant for causing the death of her intestate. The accident occurred at the Division street crossing of the defendant's railroad, in the village of Saratoga Springs. Division street crosses the defendant's tracks east and west, at a point immediately south of the railroad station. The street crossing at this point is about 40 feet in width, and planked. Between the east and west sides of the railroad inclosure are five tracks. Gates existed which shut off the entrance upon the tracks, and which were raised and lowered by the gateman, as occasion demanded. On the morning in question, a locomotive, attached to a train of cars, was standing on the easterly one of the five tracks, alongside of the station, waiting to go south, and it projected from 12 to 13 feet upon the highway crossing. The locomotive was making the usual noises which accompany the escape of steam through the automatic or mechanical device for that purpose. The intestate was standing by the gatetender on Division street, on the easterly side of the crossing, waiting to pass when the gates were raised. A man named Priester, who was driving a horse to a lumber wagon, was also waiting for the gates to be raised, and was experiencing much difficulty in controlling the movements of his horse. He was the principal witness for the plaintiff in the case, and he narrated the occurrence as follows: ‘The train was there before I came to the crossing. When I came there the gates were down. I stopped my horse. They were letting off steam. The gates were down, and the gates went up to let this woman through. When the woman got by the cowcatcher, he [meaning Bentley, the gatetender] raised the gates, and my horse went on. * * * My horse was restless and uneasy. * * * I was trying to manage it. * * * He raised the gates for the woman to go through; high enough so she could go though without stooping her head. * * * The gate remained in that position until she got by the cowcatcher. Then, when they went clear up, the horse started. After the gates were up, and when my horse was on the first track, I hollered twice to the woman, and, when the horse struck the first track, the man and I got hold of the lines. We could not hold the horse, and we struck the woman. * * * When my horse got on the track, the steam went up straight. It commenced popping off just as I got my horse on the track. When the engine commenced popping off, my horse shied on one side.’ Again, he testified: ‘When my horse started from a point thirty or forty feet east of the first track, this woman was then in front of the cowcatcher, going across the track. That was when my horse started. When my horse got to the first track, she was off that track. The engine was on the first track. There are four or five tracks. When my horse reached the first easterly track, this woman was between the first and second tracks on the west side. There were two more tracks between the engine and the woman. I went over three tracks before I struck the woman. The woman was between the third and fourth tracks, counting from the east, when the horse struck her. She was walking diagonally across the highway, so that her back and side were towards me, and she continued to walk, from the time I first saw her until she was struck, in that direction. * * * She was between the third and fourth tracks at the time she was actually struck. * * * The woman at the time was in the highway where the wagons go. * * * She was going towards the southwest side of the track, the lower side of the crossing, that is, the south side, when she was struck. When my horse struck the first track, I hollered twice to the woman as loud as I could holler. She was then ahead of me a track and a half or two tracks.’ Again, he testified: ‘When I hollored to the woman, she did not pay any attention, but walked on in the same direction right across.’ A bystander, called as a witness on behalf of the plaintiff, testified with regard to what took place when the intestate was about to cross as follows: ‘I stood there a little while, and Bentley raised the gate, and I looked and saw when he raised it that this lady passed through. I think it stopped when she went under, and Bentley looked around towards the horse, and raised the gate higher, and then the horse went through, and that is the last I saw of the woman, as she went around the end of the engine. That is the last I saw of the woman or the horse.’ At the close of the plaintiff's case, the trial justice ordered a nonsuit; holding, in effect, that the defendant had not been shown to be negligent and that, whatever hazard there was in the intestate's crossing, the railroad company did nothing that increased the hazard. The plaintiff appealed to the general term, where the judgment of nonsuit was reversed, by a divided court, and a new trial was ordered. The defendant thereupon appealed to this court, giving the usual stipulation for judgment absolute in case of the affirmance of the order.

Lewis E. Carr, for appellant.

J. W. Verbeck, for respondent.

GRAY, J. (after stating the facts).

Upon the evidence which the plaintiff adduced in support of her complaint that the death of her intestate was caused by the negligence of the defendant, I think that she was properly nonsuited. The facts very clearly showed that there was nothing done or omitted to be done on the part of the defendant to charge it with negligence, unless it be with reference to the act of Bentley, the gatetender, or with reference to the locomotive and train of cars standing by the station. If we consider, in the first...