Chamberlain v. Lehigh Valley Railroad

Hinman, J.: The appeal involves a grade crossing accident and the sole question is whether the plaintiff’s intestate, as a matter of law, was chargeable with contributory negligence barring a recovery by the plaintiff. It is well settled of course that the burden of proving contributory negligence rests upon the defendant (Code Civ. Proc. § 841-b, as added by Laws of 1913, chap., 228) and that the plaintiff is entitled" to the most favorable inferences that may be drawn from the testimony. The deceased, on and prior to the 1st day of November, 1920, the date of the accident, was the owner of an áuto-truck, with which he was engaged in the business of long distance trucking and he resided at the village of Waverly, N. Y. On the morning of that day, the deceased, accompanied by one Wilson, left Waverly to go to Interlaken, a village about forty-five miles away, for the purpose of obtaining and bringing to Waverly a load of household goods and furniture for Wilson. Having obtained the load of furniture, they were returning and arrived at the crossing where the accident occurred at about one-twelve p. m:. The crossing was about fourteen miles from Waverly, the home of the deceased. The highway upon which the deceased was approaching the crossing ran in a northerly and southerly direction and the deceased was proceeding southerly. The defendant had an interlocking [393] system of tracks, due to a union of a branch line with its main line, which two lines of tracks began to converge at this crossing and completely converged into one main line a short distance south of the crossing. At the point, of the crossing, the main line c$me in, from the-northwest and the-Ithaca branch line came in from the north, but the first union of the two lines was not effected until a point was reached about 75 feet south of the crossing. At the place where the highway crossed them, there was a considerable space between the main and branch lines which, according to the scaled map in evidence, appears to have been about 25 feet. The main line was double tracked at the crossing and the branch line was double tracked north of the .crossing but at the crossing the branch line tracks crossed; each other, cuhmnating in a single track a few feet south of the crossing. The engine of a train from the north on this branch line struck the truck just back of the center of the truck and. threw it-over on one of the main tracks. The highway, upon which the deceased was approaching in a southerly direction, ran in the same general direction as the branch line and practically alongside of it for a distance of about 1,000 feet. This branch line, however, as one looked north from the crossing in question, made a curve to the right and crossed the highway at a point about 1,000 feet away. The highway was substantially straight from the latter crossing to the crossing in question. A traveler along the highway moving in a southerly direction could, by looking directly backward along the highway at any point between, the two crossings, see a, train on the branch line as it crossed the highway at the upper crossing; but as soon as such train passed the upper crossing, coming toward the crossing in question, there were buildings and other obstacles obstructing it from view until it emerged from behind a red barn near the track, a point about 600. feet from the crossing where the accident occurred. The photographs show no other, obstruction to the view of the train after the 600-foot.point was reached; The traveler'along the highway moving southerly toward this. crossing had a clear view for 600 feet along the track. There was nothing to prevent the deceased from seeing that distance up this track if he took care to look and the plaintiff’s counsel himself argues that the deceased could, see a clear track for this 600 .feet from the time when he was nine and two-tenths seconds, time distance, from the point of the accident. He was traveling about eight miles per hour, which, at that time distance, would place him 105 feet frdm the point of the accident. : The photographs clearly indicate that he could have seen from at least that point to the point of the accident, had he looked. The highway continued practically straight aa [394] it crossed the tracks but since the branch line and the highway met at a sharply acute angle at the crossing, the highway ran diagonally across the tracks giving the deceased a fair view of the main line in both directions and of the highway ahead of him but requiring him to look to the right and in a backward direction to see a train approaching on the branch line; and as he approached the crossing, he was required to look in an increasingly backward direction. He was seated in a cab at the left of the seat, driving, and Wilson was seated at his right. It was a standard open type of wooden cab. Wilson testified as follows: “ Q. As you approached the crossing where the accident occurred, state what you did and what Mr. Chamberlain did, as you observed? * * * A. I was watching down the main line. Q. What for? A. Oh, for trains, as one naturally would, and he was leaning out on the left hand side, on his side, as I supposed, to watch. * * * I should say his head and shoulders were outside of the cab. * * * As I remember, one hand was on the steering wheel and he was leaning out, probably his head and shoulders. I should say his head and shoulders maybe were outside of the cab.” Again Wilson testified: “ Q. But as you approached this crossing at the point of accident you say you looked up the main line for trains? A. Yes. Q. And that is the only place you did look? A. I did, yes; that is the only one.” The deceased did not need to lean out the left side to see along the main tracks in either direction. They were plainly in view. If he leaned out on that side to look the reasonable explanation is that given by plaintiff’s own counsel, namely, to look back; but the obvious fact is that in doing so he turned his back upon the clear space of 600 feet north of the crossing along this branch line, upon which the train was approaching. The photographs clearly demonstrate this to be a fact and indicate that if he was looking to see whether a train was approaching on the branch line, the most that he could have seen was the upper crossing 1,000 feet away, where his vision of an approaching train was narrowed to the width of the highway, affording a mere glimpse which was immediately cut off by buildings and other obstructions behind which the train passed until it reached the clear space upon which the deceased turned his back in this effort to see. The evidence does not disclose the point on the highway where the deceased leaned out of the cab, except that it was as he approached the crossing; but that is not important since the effect of his leaning out of the left side of the cab at any point as he approached the crossing was to turn his back upon the open space where he could have seen the train. We cannot assume that he looked and saw a clear track for a distance of 600 feet, as plaintiff’s counsel would [395] have us infer, because either he looked in the wrong place or he did not attempt to look at all. If he was satisfied to confine his looking back to the view which he could obtain of a train as it passed over the upper crossing, without any effort to look back over the space of track which was clear for a distance of 600 feet, he took a chance which was not the exercise of the care which the law required him to exercise for his own safety. It was not the action of a careful and prudent man. The difficulty of looking in the right direction did not absolve him from the duty to look with care in that direction. Neither did the assumed negligence of the defendant in failing to give him any warning signal absolve him from that duty. He did not look when and where looking would be of any advantage. There was no moving object or other obstacle in his path to distract his attention from the obvious peril of the crossing, no reason why he should not have looked with care in each direction, and having taken the chance we must hold him guilty of contributory negligence as a matter of law. (Cassidy v. Fonda, Johnstown & Gloversville R. R. Co., 200 App. Div. 241; 202 id. 768; affd., 234 N. Y. 599; Barry v. Rutland R. R. Co., 203 App. Div. 287; Castle v. Director-General of Railroads, 232 N. Y. 430; Barnasky v. N. Y., O. & W. R. Co., 226 id. 435.) The judgment and order should be reversed and the complaint dismissed, with costs. H. T. Kellogg, Acting P. J., and Van Kirk, J., concur; Hasbrouck, J., concurs in reversal and votes for a new trial; Kiley, J., dissents, with an opinion.