Brown v. Delaware & Hudson Co.

Whitmyer, J. Plaintiff is seeking damages for personal injuries alleged to have been sustained by the negligence of defendant. Whether or not he was guilty of contributory negligence as matter of law is the question here. He was injured on June 13, 1927, at about eight A. M., in a collision between a track, which he was operating in an easterly direction over defendant’s Cemetery Station crossing, located a few miles northerly from Albany, N. Y., and an engine, running light, in a northerly direction on the easterly or north-bound track of defendant’s two-traclc railroad. The tracks are straight and on practically level ground for some distance in each direction, northerly and southerly, from the crossing. He had driven over it a short time before that morning, going westerly, with a load of gravel for St. Agnes Cemetery, on the westerly side of the railroad. He said that he had never been over it before. On his return, he stopped for a drink of water at a pump, located about' forty feet westerly from the cemetery gate, which is about ninety-six feet westerly from the Westerly rail of the south-bound track. He said that, after leaving the pump, he started in low gear, shifted into second when he was in or near the gateway, and had the truck in high gear when he was going on the track; he was watching north for a south-bound train; when he got to the track he saw that the front wheels of his truck were on the track before he saw the north-bound engine coming from the other direction. He said, further, that he looked to the south when he was nearly onto the crossing, about half way between the gate and the crossing, but that he could not see more than one hundred feet and did not see any signs of a train; then, he Watched to his left for a train coming from behind the station; the wheels of his truck were ¿early on the crossing before he could see from his cab and see [572] a train coming from the north, because the station was so close to the westerly rail of the south-bound track; nothing was coming from the north; his track, then, was on the south-bound track; he kept proceeding slowly and, on looking the other way, the engine Was “on top” of him, not more than forty or fifty feet away, coming at more than thirty miles an hour. On cross-examination he said that he put the truck in high gear when he was about twenty feet back from the first rail, not with full power, but just barely moving, and could stop in two feet; he looked north and did not look south until he could see clearly to the north; when he looked south he was on the first track; he had looked south before that, when he Was about thirty feet from the crossing and before he put his truck in high gear, but could not see very far, he said, not a quarter of a mile, he believed, on account of the trees. > How far they Were from the track he could not say. He put the brakes on when the engine was “right on top ” of him. The cemetery station is about seventy-five feet north of the road leading into the cemetery. Its easterly wall, at the nearest point, is thirteen feet west of the westerly rail of the, south-bound track. Northerly of that point, that wall is sixteen and three-tenths feet from that rail. A fence extends along the easterly side of the cemetery, about forty and three-tenths feet from the westerly rail. Easterly of the fence and about thirty-one feet from the rail, there was a row of maple trees. It does not appear how many there Were or how far apart, but the nearest one was about fifty-five feet from the southerly line of the road into the cemetery and about eighty-five feet from the center line of the road. They varied in size. The cemetery gate keeper said that the branches started two or three feet from the ground and defendant’s civil engineer said that they had a spread of about fifty feet. In the light most favorable to plaintiff, that is the evidence, substantially. He said that he could not see for more than one hundred feet to the south, when he looked at the point about half way between the gate and the crossing, estimated by him as about thirty feet from the crossing. Then, he put his track in high gear, but proceeded at a rate of only six miles an hour, barely moving, and could stop within two feet. At thirteen feet from the westerly rail of the south-bound track, he had a clear view to the north. The distance between the rails of that track, on the outside, was about five feet and the distance to the westerly rail of the north-bound track was five feet more, so that he had about twenty-three feet to go, [573] after that view, before reaching the north-bound track. He did not look south, until his truck Was on the south-bound track, when he saw the engine about forty feet away, coming at about thirty miles an hour. He had a clear view to the south, after his first clear view to the north. Moreover, at the speed he was going, he could stop his truck in two feet. It is clear that he kept his view to the north too long and did not look to the south until it was too late, or that he was negligent in not stopping in time. (Miller v. New York Central R. R. Co., 226 App. Div. 205, 208; affd., 252 N. Y. 546.) We think that the judgment should be reversed and that the complaint should be dismissed, with costs. All concur; Davis, J., in the result with a memorandum.