Young v. New York, L.E.&W. Ry. Co.

• Decision Date: 06 December 1887
• Citation: 14 N.E. 434,107 N.Y. 500
• Court: New York Court of Appeals Court of Appeals
• Parties: YOUNG v. NEW YORK, L. E. & W. RY. CO.

107 N.Y. 500

14 N.E. 434

YOUNG

v.NEW YORK, L. E. & W. RY. CO.¹

Court of Appeals of New York.

December 6, 1887.

Appeal from general term, supreme court, Fourth department.

Action for damages by Robert Young against the New York, Lake Erie & Western Railway Company. The facts are stated in the opinion.

DANFORTH, J., dissenting.

O. W. Chapman, for appellant.

S. C. Millard, for respondent.

EARL, J.

This action was brought to recover damages for injuries received at a railroad crossing. The defendant's railroad passed east and west through the city of Binghamton with two tracks, and Oak street passed north and south, intersecting the railroad. The south track was used for eastward bound trains, and the north for westward bound trains, and the space between the two tracks was about seven feet. The accident occurred about 15 minutes after 6 o'clock P. M. on the twenty-fourth day of August, 1881, before sundown, on a clear day. There was a freight train standing upon the south track headed east, which had been cut in two at Oak street, leaving a space of about 20 feet for the passage on the street of persons and teams. The plaintiff, going north in the center of the street, passed through this space, and, just as he stepped upon the north track, was hit by an engine going west, and was badly injured.

There was conflict in the evidence as to the defendant's negligence, and, since the verdict of the jury, it must be assumed that that was sufficiently established. But there was no conflict in the evidence as to the material facts bearing upon the plaintiff's contributory negligence. He was in possession of all his faculties, on foot, entirely unincumbered, with nothing to attend to but his own safety. There is a great preponderance of evidence that he could have seen the train for at least one-third of a mile before it reached Oak street, while he was passing over a space of about 60 feet, until he came within about 15 feet of the south track of the railroad. But the plaintiff testified that he looked while passing over that space, and did not and could not see the approaching train; and we must therefore take the fact to be that he could not have seen the train until he had passed over, or nearly over, the south track. The north track was straight for at least half a mile towards the east, and, the moment the plaintiff got upon the middle of the space between the two tracks, he could have seen a train approaching from the east for that distance. He was walking very rapidly, perfectly familiar with the location, and the use which was ordinarily made of the two tracks; and as he crossed through the opening between the parts of the standing freight train, instead of looking east, from which a train would ordinarily come on the north track, he looked to the west, and heedlessly stepped immediately in front of the engine. As he passed over the north rail of the south track, a single glance to the east would have disclosed to him the approaching train, and he would have escaped injury. He was in a place of some peril in crossing these tracks, and should have taken some care to protect himself. He was in no danger from the train on the south track, as that was stationary. If that, to some extent, obstructed his view upon the north track, there was so much the greater reason for him to take an observation the moment he had crossed the south track, so as to see whether he could cross the north track with safety, and for not doing so he is chargeable with contributory negligence which bars his recovery. Cordell v. Railroad Co., 75 N. Y. 330;Woodard v. Railroad Co., 106 N. Y. 369, 13 N. E. Rep. 424; Davey v. Railroad Co., 11 Q. B. Div. 213; affirmed in court of appeals, 49 Law T. (N. S.) 739.

But there is a circumstance to which the trial judge attached some importance, but for which, as we must infer from the language of his charge, he would have nonsuited the plaintiff, to which we must now call attention. There was a brakeman upon the south track in or near the opening between the two parts of the standing freight train. The evidence...