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

• Decision Date: 02 April 1907
• Citation: 80 N.E. 1025,188 N.Y. 156
• Court: New York Court of Appeals Court of Appeals
• Parties: SERANO v. NEW YORK CENT. & H. R. R. CO.

188 N.Y. 156

80 N.E. 1025

SERANO

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

Court of Appeals of New York.

April 2, 1907.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Annie Serano, an infant, by Michael Serano, her guardian ad litem, against the New York Central & Hudson River Railroad Company. From an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, which reversed an order of a Trial Term (99 N. Y. Supp. 1103,114 App. Div. 684) denying defendant's motion for a new trial after a verdict in favor of plaintiff, and granted a new trial, plaintiff appeals. Order of the Appellate Division reversed, and judgment entered upon the verdict affirmed.

Udelle Bartlett, for appellant.

Henry Purcell, for respondent.

CHASE, J.

On the 29th day of December, 1902, the plaintiff was struck at the Willow street crossing, in the city of Oswego, by a locomotive attached to a passenger train owned and operated by the defendant. At the time of the accident she was less than six years of age. She brings this action to recover damages for her personal injuries. The fact that an accident occurred is not disputed, but the extent of the plaintiff's injuries and the responsibility of the defendant therefor is denied. The action has been tried twice. On the first trial the plaintiff recovered a verdict. The judgment entered thereon was reversed by the Appellate Division and a new trial ordered, ‘upon the ground that the verdict of the jury was against the weight of the evidence’; one of the judges concurring in the result ‘only upon the ground that the finding of the jury that the defendant was negligent was against the weight of the evidence.’ Serano v. N. Y. C. & H. R. R. R. Co., 102 App. Div. 621, 92 N. Y, Supp. 1145. On the second trial the plaintiff again recovered a verdict. On appeal from the judgment entered thereon the Appellate Division, by a divided court, reversed the judgment and ordered a new trial, ‘upon questions of law only; the facts having been examined and no error found therein.’ 114 App. Div. 684,99 N. Y. Supp. 1103. The effect of such an order was considered by this court in Albring v. N. Y. C. & H. R. R. R. Co., 174 N. Y. 179, 66 N. E. 665, in which case the court say: ‘This order * * * means * * * that the Appellate Division reached the conclusion after examining all the evidence that the jury were justified in accepting as true in all instances of conflict in testimony that which was most favorable to the plaintiff, and yet it could not permit the judgment to stand because that most favorable view of the testimony fell short of supporting the judgment.’

This court, as said in the case last mentioned can review the questions of law that were before the Appellate Division. Our review is confined to such questions. The plaintiff is the child of poor parents, who for three or four years prior to the accident lived a short distance from the crossing where the accident occurred. She was an intelligent child, and had attended school for about one year prior to the accident. She had been accustomed to cross the tracks of the defendant's road without attendants, and to play with other little girls in the locality of the crossing. She had been told by both her father and mother that in crossing the railroad tracks she should be very careful and look up and down the tracks before crossing to see if a train was coming.

It was not negligence as a matter of law for plaintiff's parents to permit her to go into the street. Huerzeler v. Central C. T. R. R. Co., 139 N. Y. 490, 34 N. E. 1101. Her parents seem to have regarded her as possessing sufficient discretion so that she could go to school and upon errands and to play in the streets unattended. She had sufficient mental and physical capacity so that prior to the day in question she had avoided accidents. The plaintiff was not sworn on the trial, and the record does not disclose why she was crossing the defendant's tracks at the time when the accident occurred. The mother testified that plaintiff left the house 10 or 15 minutes before the time when she was brought to the house after the accident. At the crossing in question the defendant has east and west bound tracks. The general direction of the tracks is east and west, and Willow street crosses the tracks so as to make the southeasterly angle of the street line with the tracks about 58 degrees. The locomotive that hit the plaintiff was going west on the west-bound, or northerly, track. The tracks east of the crossing curve sharply to the right, and there is a bank with fences and buildings adjoining the railroad tracks on the south. The curve of the defendant's road is such that with an otherwise unobstructed view the engineer sitting on the box on the right side of his locomotive cannot see the crossing until within about 40 feet of the same, and the fireman sitting on the box on the left side of the locomotive, which is the inside of the curve, cannot see the crossing until within about 100 feet of the same. It is not claimed that the whistle of the locomotive was blown until a moment before the accident, when it was blown at the same time that the emergency brakes were applied.

The defendant claims that the bell had been ringing automatically since the train left the Oswego station, about one-half mile east of the crossing where the accident occurred. An east-bound train had passed over the southerly track of the defendant's road a moment before the accident. The engineer on the west-bound train testified that the locomotives of the two trains passed about 100 or 200 feet east of Willow street, and other witnesses confirm his estimate. The defendant claims that the plaintiff was not at the Willow street crossing, but that she was on the defendant's right of way, walking between the rails on the west-bound track, about 10 to 25 feet east of the crossing and that the engineer and fireman of the defendant's west-bound train saw the plaintiff on the tracks as stated, facing west, when their locomotive was within 20 or 25 feet of the plaintiff, and that the train was then stopped as quickly as possible, and that the plaintiff as she was stepping off the track was struck by the locomotive and thrown into Willow street. Two other witnesses for the defendant corroborated the defendant's contention.

Five witnesses for the plaintiff testified that the plaintiff was on the easterly sidewalk of Willow street, going towards the crossing, and that, when she arrived within a few feet of the east-bound track, she stopped and waited for the east-bound train to pass, and when it had passed so that the rear of the train was from 12 to 75 feet east of the crossing she proceeded across the tracks. The distance between the east and west-bound tracks is 8 feet. One witness for the plaintiff, who saw the accident, testified that the plaintiff walked slowly, and, when she came to the middle between the east-bound and west-bound tracks, that she looked both ways, and that, when she came to the last track, she looked the way from which the train was coming, and was then struck. Another witness for the plaintiff, who saw the accident, testified that after the east-bound train had passed about 75 feet the plaintiff looked east, and started across the track, and was then struck.

The defendant's engineer and fireman and 11 other witnesses, all of whom were on the train, with two exceptions, and 8 of whom were defendant's employés, testified that the bell on the locomotive was rung. The plaintiff produced five witnesses who were in the vicinity of the crossing, who testified, in substance, that they were in a position where they could hear the bell if...