Moore v. Coney Island & Brooklyn Railroad

Rich, J.: The appellant operates a steam railroad in the borough of Brooklyn, which crosses Coney Island avenue at grade. The defendant Coney Island and Brooklyn Railroad Company operates a trolley road through Coney Island avenue, its tracks crossing those of the appellant at grade. Approaching this crossing on the trolley road, a view of the steam road" is cut off in places, and obstructed at others, by a high board fence along the tracks. At the time of the accident the plaintiff, an infant, accompanied by his mother and other members of the family, was a passenger upon one of the cars of the trolley company. A train of Sat cars, loaded with dirt, was being backed toward the crossing on the tracks of the appellant as the trolley approached. A flagman at the intersection, having in his hands a red and á white flag, waved the red flag parallel with the tracks upon which the trolley was approaching and across the tracks of the steam road, and .the car came to a full stop. He then dropped the red flag to his side, turned his back to the trolley car and waved the white flag in a direction parallel to the tracks of the steam road and across the tracks of the trolley road. In the mean* time the conductor of the trolley car walked to the crossing anc\ signaled his motorman to come ahead. After the car started the conductor motioned for it to stop, and the flagman said, “ For God’s sake, keep back.” The motorman, however, increased the speed of the car, and went upon the crossing, where it was struck by the dirt train and the plaintiff received the injuries for which he has been permitted to recover. Ho evidence was given by the appellant. The trial court dismissed the complaint on the merits as against the trolley company, and rendered a judgment against the appellant, from which this appeal is taken. It is first contended that there is no evidence establishing that the appellant operated the dirt train or the tracks upon which it was being run. The answer to this is that its answer admits that it maintained and operated a steam railroad in the borough of Brooklyn which crossed Coney Island avenue in said borough at [398] grade.' There is evidence that no railroad in Brooklyn crosses Coney Islan'd.avenue except the one upon which the dirt train was being operated, which is sufficient to sustain the conclusion that the track upon which the dirt train was being operated was the track maintained and operated by the appellant. No presumption could obtain that any other railroad company ran its cars over the appellant’s tracks. The presumption is to the contrary, and it was not incumbent upon the plaintiff to show that the dirt train was owned or operated by the appellant., (Jennings v. Brooklyn. Heights R. R. Co., 121 App. Div. 587.) It is- next contended that there is no evidence to show that the flagman stationed at the crossing was in the employ of the appellant or to charge it with his acts or omissions. Conceding this, the fact remains that the dirt train approached the crossing, hidden from view by fences, at. a fast rate of speed and without signals by whistle or bell. Under the authority of Robson v. Nassau Electric R. R. Co. (80 App. Div. 301) this raised a question of fact as to the negligence of those operating it. I think there is sufficient evidence upon this question to sustain the judgment. Conceding that the evidence was sufficient to warrant a finding of negligence on the part of the employees -of the trolley company, this does not relieve the appellant- from the effect of its concurring negligence or furnish a defense to the plaintiff’s cause of action. The questions of the-greater degree of negligence as between the defendants, or whether or not the trial court erred in dismissing the complaint as to the trolley company, áre not before us and cannot be considered. The judgment of the Municipal Court must be affirmed, with costs. Jenks and G-aynob, JJ., concurred; Miller, J., read for reversal, with whom Woodward, J., concurred.