Pulcino v. Long Island Railroad

Gaynor, J. : The learned trial Judge in settling the case on appeal allowed the stenographer’s minutes by question and answer. This must have been inadvertent for the rule forbids it. The evidence should have been reduced to a strict narrative, and all superfluous colloquy and matter omitted. And attorneys for appellants asking this court to review the facts should observe this rule for the sake of their clients if for no other reason. The slovenly condition of the record in this case has doubled our labor of reading it. As the decedent approached the crossing of the defendant’s steam railroad, the gates were down, and a freight train was passing Eastward, i. e., on the track on the side the deceased was on. The testimony on the plaintiff’s side is that when this train had passed the gates went up about six feet and came down again, but the deceased passed under them as they were up, looked both ways as he walked ahead, and was struck on the second track, which was distant five feet from the first, by the engine of a passenger train going in the opposite direction. The gates could not go up or down except by the gateman turning a crank, and then they moved gradually. He was there on duty. The evidence on the defendant’s side was that the gates did not go up, but that the deceased crouched and went under them while they were down and hurried across. The gate-man testified also that the signal ball for each train had dropped at nearly the same time, and he had lowered the gates for both trains. [631] The learned trial J udge sent only one question of negligence of the defendant to the jury, viz., whether the gates were raised about six feet as the first train got by, and, if so. whether that caused the accident, bio exception was taken by the defendant to allowing the liability of the defendant to depend on that alone, and no objection thereto is made on appeal. The evidence was sufficient to enable the jury to fairly find that the gates were raised. The learned trial J udge charged, substantially, on the question of the contributory negligence of the deceased, that even if the gates were up, it was the duty of the deceased to use due care, but that it was for the jury to say whether the gates were raised enough to warrant the deceased in believing that the raising of them was a declaration to him that the way was safe and to go ahead, and to what extent his vigilance was thereby lessened. In this there was no error. The case of Stack v. N. Y. C. & H. R. R. R. Co. (96 App. Div. 575) has no bearing. There the gates were not raised in the presence of the deceased, but were permanently out of use. The refusal of the learned trial Judge to charge in the present case that the gates as raised were not an invitation to pass or an assurance of safety was not error. It was for the jury to say whether the raising of the gates in the presence of the deceased was such. The refusal to charge that when a crossing is obscured by the smoke of a passing train it is the duty of one about to cross to wait until the smoke clears away enough to enable him to see up and down the track, was not error. First, the evidence presented no such case. While there was some smoke as the freight train passed, the evidence shows that it had substantially cleared when the deceased started to cross. Every one saw him plainly. Second, though the request be correct as a general proposition [Keller v. Erie R. R. Co., 183 N. Y. 67), that did not require it to be charged. It is only error to refuse to charge rules of law which are put in a form applicable to the facts of the case. The fact of the gate being raised as an invitation for persons to cross was an element that entered into the matter, and it was for the jury to say to what extent it threw the deceased oil his guard, smoke or no smoke. The request should have taken this into account, for such was the case. If there had been no invitation by the defendant for the plaintiff to [632] cross, the request might have been good, if the tracks were so covered with smoke that one could not see. The judgment and order should be affirmed. Rich, J., concurred; Woodward, J., concurred in result; Miller, J., read for reversal, with whom Jenks, J., concurred.