Berkery v. Erie Railroad

Laughlin, J. : On the 6th day of December, 1897,- the plaintiff, while passing along the westerly sidewalk of Main street and over the northerly track of defendant’s road in the village of Silver Springs, was struck and injured by a locomotive moving westerly. The recovery in this action was for the damages caused by the injuries thus inflicted. The only question presented by the appeal which merits extended .consideration is whether the evidence fairly required the submission to the jury of the question as to whether plaintiff was free from contributory negligence and is sufficient to sustain the verdict in her favor upon that issue. Main street runs north and south, is fifty-two feet wide and has a board walk upon either side. The two main east and west-bound tracks of the defendant and one siding southerly thereof cross the street at grade in a northwesterly and southeasterly direction, at an. angle of twenty-four degrees and twenty-eight minutes. Train No. 95, known as the way freight, arrived at Silver Springs at ten-forty-five a. m., being fifty minutes late. According to the testimony of the trainmen, it consisted of eleven freight cars, five loaded and six empty, besides the engine, tender and caboose, in the following order' from the-front of the train — the locomotive and tender, four empty cars, two loaded cars, two empty cars, three loaded cars, followed by the caboose. The station was. on the northerly side of the track, about 100 feet west of Main street. The train came in from the east on the northerly or west-bound track and stopped before reaching the station or crossing Main street. The trainmen testified that the four cars next the tender were to be cut out of the train at this station and placed and left on the saltworks siding, and that the car next the caboose was likewise to be cut out, placed and left on the Silver Lake railway siding. These sidings were both connected [491] with the track upon which the train came in by a siding which commenced in the easterly sidewalk of Main street near where the engine first came to a stop and ran easterly along the northerly side of the northerly track, intersecting the Silver Lake railway siding about 250 feet east of Main street and the salt works siding 150 or 200 feet beyond, according to the map. The coupling pin between the fourth and fifth cars from the tender was drawn, thus cutting off the four cars to be switched to the salt works. The engine then moved forward with these cars sufficiently to clear the switch located near the easterly line of Main street. The switch was turned and the engine proceeded to back'the cars onto the northerly siding. The foregoing facts are practically uncontroverted with the exception that the testimony of some of plaintiff’s witnesses would seem to indicate that there was a car or two next the tender which it was not intended to leave upon the salt works siding; but at this point a serious conflict arises in the evidence. Plaintiff contends, and her contention is sustained by the testimony of three disinterested witnesses, in addition to that given by herself, that as the engine started back to throw these four or more cars upon the northerly siding, it suddenly reversed, before fully passing over the crossing, started forward at a speed of- four or five miles an hour and struck plaintiff, who was unaware of its change of direction. According to some of plaintiff’s witnesses, the engine shunted some cars in upon the northerly siding just before reversing, and one or two cars remained attached to the engine as it moved forward after reversing. On the other hand, the testimony of defendant’s employees upon the train, which was corroborated by other disinterested testimony, is to the effect that the four cars had been switched upon the salt works siding, and that the engine had returned and coupled to the remaining seven cars of the train and was proceeding forward with them, having left the caboose where it first stopped on account of having to switch off the rear car, when plaintiff walked upon the track and was thus struck. If the accident occurred while the train approached the crossing in the manner'testified to by the witnesses called for the defendant, plaintiff should have discovered the train, and the court properly instructed the jury that if they believed that evidence, she was guilty' of contributory negligence and could not recover. [492] Plaintiff lived about a quarter of a mile south of the station and had been familiar with the crossing,. passing over it frequently, for a period of about .six years. The day was foggy and- misty, and it was .snowing a little. Plaintiff was desirous of taking the Rochester and Pittsburg train, which was due to leave defendant’s station in Silver Springs at ten-fifty-five a-, m. She was walking and came up Orchard street, which intersects Main street about a hundred feet south of the crossing. From Orchard street she turned upon the westerly sidewalk of. Main street and passed on toward the crossing. Her evidence tended to show that when in front of or a little nearer the track than the Currier House, which, according- to the map, would be within seventy-five feet of the southerly siding, she first saw the train coming from the east toward the station ; that it had not yet reached the crossing; that the engine passed over the street, and stopped, or nearly stopped, with cars obstructing the crossing, and started to back up about the time she reached the southerly siding; that she then stopped and looked to see which way the train was going, and, as it started east slowly, she started and walked along' and was about to the southerly main or east-bound track when- the engine passed her; that she then looked to see if it was coming again, and, after the engine got past the sidewalk and she saw it still moving eastward, she" proceeded to cross at. a good gait; that the last she saw of the engine before stepping upon the west-bound track, it was six or eight feet east of the sidewalk, still moving eastward, and that at this time she was between the rails of the east-bound track; that steam was escaping from the engine, making a sizzing, roaring ndíse; that she listened and heard no other noise or signal, and was not aware that the engine had reversed until it struck her just as she was about to step, over the last rail of the west-bound track. We have not overlooked the fact that on direct examination the plaintiff, in- giving an affirmative answer to a leading question, appears to have testified that the time when she. last looked was just as she was stepping upon the west-bound track, and that it was at that time that the engine was six or eight feet east of the sidewalk; but, upon cross and redirect examination, her attention was again drawn to this matter and she- testified ■ that -this had reference to the time when she was on the east-bound track. Whether the plaintiff was justified in proceeding across the west-bound track without [493] looking again toward the engine, which was moving to the east when she was within a few steps of the track, was, we think, under the circumstances, a question of fact for the jury, and they were justified in concluding that a person of ordinary prudence would have been justified in the assumption that the engine would not, without notice or warning, suddenly reverse and move forward so rapidly as to thus overtake a pedestrian crossing the track. If the jury found, as is indicated by their verdict, that the accident occurred at the time the engine was engaged in switching the four cars, as claimed by plaintiff, and not when it was coming forward with the remainder of the train, as claimed by defendant, then defendant’s negligence was clearly established. The evidence warranted the finding not only that the engine was suddenly reversed and moved forward rapidly, but that this was done without the giving of any signal by bell, whistle or otherwise and when plaintiff was upon or just stepping upon the track a rod or two ahead. The engineer was looking the other.way and did not see plaintiff, but the jury would have been justified in finding that the fireman saw her and did nothing to avoid the accident. Whether the engine was six or eight feet east of the sidewalk when plaintiff was about to stejD upon the west-bound track, within ten or twelve feet, measured along the line of the walk, of the point where she was struck, or when she was upon the east-bound track and between twenty and thirty feet of the point where she met with the accident, it was jfiiysically possible for this light passenger engine to be suddenly reversed and started forward with sufficient rapidity to overtake her before she cleared the west-bound track, depending, of course, upon the speed with which the engine proceeded easterly, the distance it proceeded easterly and. the suddenness of the reversal and starting forward. Disinterested witnesses say that they observed that the. engine made this movement before the accident and had their minds drawn to it and fixed upon it, expecting that an accident would be inevitable. Some witnesses say the engine was reversed on the street at the point where wagons cross the track and when plaintiff was upon the west-bound track. It is, of course, a matter of common observation that when an engine is suddenly reversed, the wheels are likely to slide and it makes considerable noise ; but whether, in the exercise of ordinary care, plaintiff could and should [494] have observed such noise, was, in view of the noise made by. the escaping steam and under all the circumstances, a question of fact for the jury. We are of- opinion, therefore, that the evidence justified the submission of the case to the jury and is sufficient to sustain their verdict. The judgment and order appealed from should be affirmed, with costs. . All concurred, except McLennan, J., who dissented in an opinion.