Swart v. New York Central & Hudson River Railroad

McLennan, J.: The facts, so far as material, may be briefly stated : At about four o’clock .in the . afternoon of October 6, 1900, a bright, clear day, there being no wind or storm of any kind, the plaintiff, who was then nearly sixteen years old, a bright, active, intelligent lad, was struck and severely injured by one of the defendant’s freight — 404 — trains at a highway crossing of the West Shore -railroad, about a mile northwest of the village of Port Byron, in the county of Cayuga. To recover damages" for the injuries thus received this action is brought. The highway at the place in question extends substantially north and south, and is crossed at right angles by defendant’s railroad. Immediately west of the crossing the rails are laid upon an embankment 5 or 6 feet high at its greatest elevation for a distance of about 250 feet, then for about 500 feet through a cut 30 feet wide at the base and 80 feet at the top. Its greatest depth is near the middle, and is between 9 and 10 feet, and it runs out to nothing at either end. From the west end of the cut, which is about.750, feet from the crossing, the tracks are on a level with the adjoining lands, and are substantially straight for a distance of more than a mile 'from the crossing. Approaching the railroad upon the liighwayfrom the north, and at a point about 113 feet from the north rail of the track, some portion .of a.train of cars can be seen for the entire distance of 500 feet west of the crossing. Then a hedge some 10 or 12 feet in height upon the west side of the highway, extending toward the south for a distance of about 90 feet, virtually obstructs the view to the west,,but from the south end of the hedge to the north rail of defendant’s track, a distance of at least 25 feet, the tracks of the railroad to the west and a train approaching thereon are in plain view for a distance of at least 1 mile. In other words, at any point in the highway between the south end of the hedge and the north rail at the crossing, the tracks of the defendant’s railroad are in plain view from the crossing clear through the cut, a distance of 750 feet, and for a considerable distance still further to the west; and, of course, a train composed of an engine and thirty-five or forty freight. cars, if upon such portion of the railroad, could be seen even more distinctly than the roadbed. . Upon the day in question the plaintiff was driving a single horse attached to a milk peddler’s wagon south upon the highway. He was entirely familiar with the surroundings; was accustomed to pass over the crossing frequently; the horse was gentle and not afraid of the cars ; the plaintiff was reading a book which lay open in liis lap; -he was holding the reins with one hand, and the. horse — 405 — was upon a walk. When about 500 feet from the crossing he had a view of the railroad to the west for some distance, and at that .point looked to see if a train was approaching and saw none. He knew where the crossing was located and that he was approaching it. He then stopped reading, although the book remained open in his lap, and proceeded on his way until he reached the hedge, which obstructed his view to the west. He then looked to the east and saw no train in that direction. When he reached the south end of the hedge he testified that he again looked to the west; that he then could and did see the tracks of defendant’s railroad from the crossing clear through the cut, a distance of about 750 feet, and that he saw no train; that he could not see west of the cut because the sun shone in his eyes, and that he looked to the east and saw a handcar some distance east of the crossing ; that he looked long enough' to determine which way. the hand car was goings that his horse during this time was proceeding on a walk toward the crossing, and that, as his horse got upon the tracks, he again looked to the west and saw the freight train approaching from that direction, which was then close upon him, and the collision occurred. The plaintiff testified explicitly that immediately after passing the south end of the hedge he looked to the west for the purpose of ascertaining whether or not a train was approaching the crossing from that direction; that he saw none, although as we have seen he states that he saw the tracks of the defendant’s road for a distance of 750 feet from the crossing. He also testified that he listened for signals; that he heard none, and heard no sound or noise which would indicate that a train was approaching, although concededly no other trains were in the vicinity, and there were no other noises which -apparently would prevent his hearing an approaching freight train upon a day when there was no other wind or other storm. There is evidence tending to show that the freight train in question, as it approached the crossing, was going at the rate of fifty miles an hour; that the bell upon the engine was not rung or the whistle sounded. In fact, the evidence bearing upon the question of the defendant’s negligence was of such a character as to make it a question of fact to be determined by ■ a jury. The only question which need be considered upon this appeal is whether or not — 406 — the learned trial court properly decided that, as matter of law, the plaintiff failed to establish that he was free from contributory negligence. The evidence demonstrates beyond the possibility of doubt that when the plaintiff passed the south end of the hedge, and was at a point in the highway twenty-five feet from the north rail at the crossing, the freight train Was in plain sight. If the horse was traveling at the rate of only two miles an hour, while traversing the twenty-five feet between the south end of the hedge and the crossing— the lowest speed suggested by the evidence—-and the train was going at the rate of fifty miles an hour — the highest speed estimated by any witness — then the train was going twenty-five times as fast as- the horse, and, consequently, when the plaintiff was twenty-five feet from the crossing, the train was six hundred and twenty-five feet away, and at a point in the cut where the plaintiff testified he was able to see and actually did see the track and roadbed of the defendant’s railroad when he was at a point immediately south of the hedge. If the horse was going faster and the train slower, then it would be relatively nearer the crossing. There is no pretense that the sun interfered with the plaintiff’s view of that portion of the railroad over which the train was then passing. According to the plaintiff’s testimony the sun only prevented him from seeing the railroad west of the cut. The tracks from the crossing west for a distance, of seven hundred and fifty feet were in his plain view,, and, as he testified without qualification, were-actually seen by him after passing south of the hedge. Construing the evidence most favorably to the plaintiff, when he had reached that point the train was at about the middle of the cut. The plaintiff’s eyesight was good ; his attention was in no. manner distracted.;, he had in mind that he was approaching-the -crossing, and his horse was gentle and under perfect control. It follows that if the plaintiff, after he passed the hedge, looked to the west intelligently, looked with his mind and not merely with his eyes, he saw the train but gave no heed to it, or else that he attempted to cross in front of it. Under the circumstances disclosed by the evidence in this case, if the plaintiff did not look to the west after passing' the south end of the hedge, he was guilty of negligence as matter of law, and, — 407 — therefore, the direction of a verdict in favor of the defendant was proper. It cannot be that “ look ” simply means that a person with his eyes open shall turn his head in a particular direction. The word as used and understood in the decisions must mean that he “ looked ” intelligently, and in such manner that what his vision disclosed might influence his action or conduct. If the plaintiff in this case looked to the west in that sense, after passing the south end of the hedge, he saw the approaching freight train; saw it plainly and distinctly, because it was in full and plain view. If he did not look in the sense indicated, in law he did not look at all. A blind man may say, “ I looked and did not see,” and it may be said of an idiot that he looked and no impression was made upon his mind ; but not so with a person "who has good eyes and a sound intellect. The question in this case is simple. If when at a point in the highway twenty-five feet from the crossing the plaintiff looked to the west for the purpose of seeing, as in law he was bound to do, he in fact saw the train with which he came into collision. If he saw it and made no effort to avoid the collision, as concededly he did not, he was guilty of negligence as matter of law. If he did not look in the sense indicated, he was guilty of negligence, and a recovery cannot be had.' This court has held (Fiddler v. N. Y. C. & H. R. R. R. Co., 64 App. Div. 95) that a statement by a plaintiff that he looked and did not see does not raise a question of fact when it is demonstrated according to the laws of nature and ■common experience that if he looked he did see. It seems to us that it would be a travesty upon the administration of justice to hold that a plaintiff may raise a question of fact which must be submitted to and determined by a jury, simply by testifying that he looked but did not see a train composed of an engine, the top of which was fourteen feet above the rails, and thirty-five or forty freight cars, making a total length of more than ■a thousand feet, when all of it was within his plain view. If such is the law, then all that a plaintiff need do in a crossing case, in order to make a question of fact for a jury, is to testify that he looked ‘ but did not see. No stronger case can ever be presented illustrative of the proposition than the one at bar. In view of our decision in the Fiddler Case (supra) we are constrained to hold that the plain — 408 — tiff was- guilty of contributory negligence as matter of law, and that the decision of the learned trial court was correct. It follows that the judgment and orders should be affirmed, with costs. Spring, Hiscock and Nash, JJ., concurred; Adams, P. J., dissented.