Stowell v. Erie R. Co.

• Decision Date: 07 December 1899
• Docket Number: 64.
• Citation: 98 F. 520
• Parties: STOWELL v. ERIE R. CO.
• Court: U.S. Court of Appeals — Second Circuit

98 F. 520

STOWELL v. ERIE R. CO.

No. 64.

United States Court of Appeals, Second Circuit.

December 7, 1899

Raphael J. Moses, for plaintiff in error.

F. B Jennings, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

On July 9, 1896, about 2 p.m., the plaintiff was driving a horse attached to a small phaeton along Englewood avenue Englewood, N.J., proceeding southeasterly, so as to cross the tracks of the Northern Railroad of New Jersey, which road defendant conceded, for the purpose of the trial, that it was operating on that day. The crossing was at grade, some 1,500 feet from Englewood station, and 6,400 feet from Nordhoff station; and, approaching it as she did, she would first encounter the track for south-bound trains, going from Englewood to Nordhoff. A civil engineer was produced by the plaintiff, who had made careful observations and measurements, and plotted down the results thereof on a blue print, which was put in evidence. It appeared from his testimony that a person approaching this crossing as did the plaintiff would have an unobstructed view northwards towards Englewood station 565 feet, when within 18 feet of the west or south-bound track, and at 12 feet from said track could see in that direction 1,465 feet. The view towards the right hand as one approached was much more extended. The witness testified:

'The view which I have down the track towards Nordhoff as I approach the track on Englewood avenue, going east, is towards Nordhoff. You can see to Nordhoff station. That is 6,400 feet. I have a view of the entire track all the way for a mile or more. I have that view for 100 feet back from the track on Englewood avenue. I did not try the view further back, but I know there is nothing in the way for a hundred feet at least. Further back they see at least a mile down the track. For 200 feet away from the track it is an entirely clear and unobstructed view; and from that point up to the track, and crossing the track.'

It further appears from the blue print that at 25 feet west of the west track there is an unobstructed view in the direction of Nordhoff and beyond for 9,600 feet.

The situation as the plaintiff drew near the crossing was this On the south-bound track there was a train due to leave Englewood at 2:06 p.m., and due at Nordhoff at 2:10 p.m. On the north-bound track there was a train due to leave Nordhoff at 2:06 p.m., and due at Englewood at 2:09 p.m. The speed of the first between stations was 33 feet per second. The speed of the other between stations was 44 feet per second. At this speed, if on time, they would encounter each other in about 1 minute and 42 seconds at a point 1,912 feet south of the Englewood crossing. The running time of both trains after getting under way from the station, was, of course, higher,-- possibly 30 and 40 miles an hour, respectively. There is no direct evidence in the case that either train was behind time. The conductor of the north-bound train expressly testified that he left Nordhoff on time, and was running according to the time-table; the accident delayed him some ten minutes. No one testified as to whether the south-bound train was on time or not, but in view of the fact that plaintiff, starting just as it passed her, had barely reached the east track when she encountered the north-bound train, it would seem that the south-bound train was about 15 to 20 seconds late. As to whether there was any failure to sound bell or whistle on the colliding train the testimony is very unsatisfactory, but, as the cause was disposed of below upon the question of plaintiff's own negligence, it will not be necessary to discuss such testimony.

The transactions which led up to the accident, according to plaintiff's own narrative, in which she is corroborated by the other witnesses, were as follows: She was driving towards the crossing on a slow trot, when she heard the noise of a train. It was a puffing sound, such as it would naturally have in starting. She stopped and waited to see where it was coming from, and looked both up and down the track, soon perceiving that the noise was from the south-bound train, which came in sight. The place where she stopped, as she estimated, and one of her witnesses corroborated her, was about 25 feet west of the west track. From this point, at the time she looked, the south-bound train having just left Englewood station, the north-bound train must have been in plain view, leaving Nordhoff station but she seems not to have noticed it. Probably the train whose noise she heard, and which was close at hand, more particularly challenged her attention. The plaintiff was entirely familiar with the crossing and its surroundings. She waited where she had stopped until the south-bound train was just clearing the flagging (planking) laid between the rails for a roadway, and then started up the horse because she was in a hurry. She heard no signal whistle or bell, nor any noise of another approaching train; the noise of the down train being, as she testified, sufficient to drown any such sound from the up train. She started the horse as soon as the south-bound train had passed,-- whether at a trot or a walk, she could not say. Before starting him she again looked up and down, seeing nothing except the disappearing south-bound train, which, of course, obscured temporarily the north-bound track from the crossing south towards Nordhoff. Proceeding on towards the north-bound track, plaintiff suddenly became aware of the proximity of the north-bound train, quite close to her; hearing its danger signal 'just after the other train.' Her horse was then on the track, but by the exertion of all her strength she pulled him around, away from the train; and he was struck, not by the...