Zaun v. Long Island Railroad

Burr, J.: This action was brought to recover for the pecuniary injury resulting from the death of William Zaun on the 7th of July,1908. He was killed a.t the junction of Bayview avenue and the tracks of the Long Island railroad. At that point the tracks run approximately east and west. • The deceased was approaching, the tracks [720] from the south, riding upon a bicycle. The first track that he would come to was the track upon which the east-bound trains, run ningfrom Héw York to Patchogtie, pass.:. Over.the more northerly track trains passed in a westerly direction, running from Patchogue to Hew York. He was killed by a train upon this track. At the close of plaintiff’s, case, andagain at the close of the entire case, defendant moved for a nonsuit.' The court reserved decision, and submitted the case to .the jury, Thei jury disagreed, and-thereafter the court granted the motion for. a nonsuit, and. from the judgment entered thereon this appeal is taken. There was sufficient evidence to require the. submission to the ' jury of the question of defendant’s negligence. Plaintiff not only failed to establish freedom from contributory negligence on the part of the deceased, but established affirmatively that thé accident - was due to his want of- care. ^ - : : Three witnesses were: called for plaintiff to testify as to. the happening of the accident. Hone of them actually-saw the train strike the deceased, although one of the witnesses-' saw him when within a very few feet of the • northerly, rail of the west-bound track. Deceased’s body was found lying about six or seven feet ' from that point. He had lived in the neighborhood for some time, and was thoroughly familiar with the location and surroundings, It was claimed, and probably correctly, that the' crossing was somewhat dangerous because of the frequent passing-of trains over the tracks, and of. vehicles and pedestrians across the road. As the deceased approached the first or east-bound track from, the south,' going in a northerly direction, a train passed along going easterly, consisting of four or five cars. The witness Bloom testifies that just1 after the east-bound train had passed he noticed a train coming on the northerly track, bound - west. He did not notice the inan on the wheel- until lie had .been struck. - . ■ The witness .Bedell testified that he, observed the deceased waiting ini til the east-bound train on'the, southerly, track had passed, when he started to 'Cross the track arid.kept moving along on-his wheel.' He did not notice him'until he was struck. -. But-the' witness Gilmore,-who was .dallied for plaintiff, testified - that he observed the deceased, after the east-btiund train had passed, [721] go right behind it; that he saw him look toward the west, whence the train from Hew York was coming on the first track that he approached; that he did not look toward the east, whence the train that struck him was coming, and he'was sure of that because he kept watch of him all the time. This - same witness testified that, when 20 feet south of the first track, it was possible to see 320 feet to the east. Other witnesses put the distance greater, and say that at 40 feet from the southerly line of that track one could see in an easterly direction 800 feet, and when one got upon the southerly track upon which the first train was running, and between the tracks, one could see for half a mile, or 3,000 feet, in an easterly direction. Ho witness testifies to any permanent obstruction which would prevent deceased from seeing the approaching train in ample time to avoid a collision with it. Although in the case of the death, of an injured person less evi- ■ dence is required to establish freedom from contributory negligence than though the injured person was living and could testify, the burdemof proof still rests upon the representative of the deceased to introduce some evidence upon that point. As I have before stated, plaintiff’s evidence establishes affirmatively that the deceased did not look in the easterly direction at all, and that if he had looked before going upon the west-bound track on which the train that injured him was coming, he could have seen the train more than half a mile away. It is quite apparent that seeing the train going east, he assumed that was the only train passing, at that time, and passed along immediately in the rear of that train without looking in the' other direction to see if there was a train coming. If his view of the train coming from the east was temporarily obstructed by the train passing on the other track, it was his duty to wait until that temporary obstruction had disappeared. (Heaney v. Long Island R. R. Co., 112 N. Y. 122; Daniels v. Staten Island Rapid Transit Co., 125 id. 407 ; Turck v. N. Y. C. & H. R. R. R. Co., 108 App. Div. 142.) It will not be presumed that the. deceased looked to see-if there was a train approaching; it must -be proved. (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308.) The evidence establishes affirmatively that the deceased did not look. [722] The judgment and order appealed from should be affirmed, with costs. Jenks and Thomas, JJ., concurred; Woodward, J., read for reversal, with whom Hirsohberg, P. J., concurred.