Siivonen v. City of Oneida

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before REYNOLDS; STALEY; REYNOLDS
• Citation: Siivonen v. City of Oneida, 306 N.Y.S.2d 278, 33 A.D.2d 934 (N.Y. App. Div. 1970)
• Decision Date: 05 January 1970
• Parties: Esther SIIVONEN, as Executrix of Paavo Siivonen, Deceased, Appellant, v. CITY OF ONEIDA et al., Respondents.

Page 278

306 N.Y.S.2d 278

33 A.D.2d 934

Esther SIIVONEN, as Executrix of Paavo Siivonen, Deceased, Appellant, v. CITY OF ONEIDA et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Jan. 5, 1970.

Bond, Schoeneck & King, John F. Rafferty, Syracuse, for appellant.

Kernan & Kernan, James S. Kernan, Jr., Utica, for respondent New York Cent. R. Co.

Joe Schapiro, Hamilton, for respondent City of Oneida.

Before REYNOLDS, J.P., and STALEY, GREENBLOTT, COOKE and SWEENEY, JJ.

STALEY, Justice.

Appeal from judgments of the Supreme Court in favor of defendants, the City of Oneida, New York and the New York Central Railroad Company, entered June 6, 1966 and July 5, 1966 in Madison County upon a verdict rendered at a Trial Term dismissing plaintiff's complaint against both defendants.

On September 26, 1963 appellant's decedent, a paid fireman of the City of Oneida, was killed when the fire truck on which he was riding as a passenger was struck by the locomotive of a train operated by the respondent railroad. The fire truck which was responding to a fire call was operated by Captain Edward C. McCulley with appellant's decedent seated on the right seat of the open cab of the truck. At the time of the collision appellant's decedent was in the course of his employment as a fireman and was acting under the direction and control of Captain McCulley.

Prior to the collision, the fire truck was driving northerly on Willow Street and approached the railroad crossing of the east-west bound tracks of the respondent railroad. The overwhelming evidence of the witnesses testifying was to the effect that, as the fire truck approached the railroad crossing, the warning railroad gates were down and closed, the gates' lights were flashing, and the red warning signal lights were flashing. Most of the witnesses testified that the train whistle was blown before the collision. The uncontradicted evidence indicates that the fire truck approached the crossing, slowed down behind an automobile which had stopped because of the crossing warnings, and then drove around the closed guard gate onto track two of the railroad tracks. After the fire truck passed around the closed gates, appellant's decedent stood up and looked to right, or east, from which the railroad train was approaching, and the accident happened instantly thereafter. The train struck the fire truck on the passenger door near the right front end of the truck and the driver and passenger were killed instantly. The sight distance to the east when the fire truck was two feet north of the guard gate, or 26 feet south of track two was approximately 4,000 feet. Trees and high bushes near the crossing obstructed visibility to the east and the sight distance to the east at a point 30 feet south of track two from the center of Willow Street was approximately 226 feet.

Wrongful death actions were brought by appellant against the railroad and the City of Oneida and the estate of McCulley brought an action for wrongful death against the railroad. The City of Oneida cross claimed against the railroad for property damage to the fire truck. The jury returned verdicts of no cause of action in all the actions involved. Since appellant's claim resulted in a verdict of no cause of action, the jury had to find that either the railroad and the city were not negligent, or that the appellant's decedent was guilty of contributory negligence. The jury's verdict of no cause of action in the property damage claim of the city against the railroad, and in the claim of the truck driver against the railroad, indicates that the jury found that the railroad was not negligent or that the truck driver was guilty of contributory negligence.

The record insofar as the respondent railroad is concerned contains overwhelming evidence that the railroad was not guilty of negligence. It is undisputed that the guard gate was down and that the red warning signals were operating. It is not contended that the train's speed of approximately 80 m.p.h. was violative of any ordinance of the City of Oneida regulating the speed of trains through the city. In addition to the witnesses who testified that the train whistle was blown as the train approached the crossing, the railroad engineer and fireman testified that the whistle had been blown almost continuously from the time the train started to proceed through the five crossings in the city, of which the Willow Street crossing was the fourth, in the westerly direction the train was headed. The engineer also testified that his headlight was on and that the continuous bell mechanism had been activated. The railroad watchman was on duty in a shack to the northwest of the tracks. He testified that he went out on the crossing and signaled the truck to stop by waving a flag over head. Two other witnesses near the scene testified that he was on the crossing moving a flag from right to left in front of his body, and yet another witness testified that he stood off to the side of his shanty with the flag furled and held across his thighs. Many of the witnesses did not remember seeing the flagman, but no one testified that he is any manner signaled the truck to proceed onto the track.

The established rule is that a railroad has a paramount right-of-way for the operation...