McCowan v. Lehigh Valley Railroad

Crosby, J. These two actions were tried together. The two decedents were killed in a collision between an auto truck in which they were riding and a train of the defendant Lehigh Valley Railroad Company. The defendant Cullen is a division engineer of the railroad company and is sued because it is alleged that he caused an obstruction to be erected near the crossing where the accident occurred, so that the view of approaching trains was cut off. The defendant railroad company is sued for failure to give timely and adequate warning. On motions for nonsuit the complaints were dismissed at the end of plaintiffs’ evidence. Clearly there was evidence sufficient to take the cases to the jury on the issue of the negligence of the railroad in faffing to give adequate warning, but the trial court nonsuited the plaintiffs upon the theory that, from the showing of plaintiffs, the decedents were guilty of contributory negligence as a matter of law. The evidence was meager, as there were no eye witnesses to the accident, at least none produced by the plaintiffs. The station agent of defendant railroad was produced by plaintiffs as a witness, and, in addition to testifying that he heard no crossing signal, he testified [448] that about a minute before the accident he saw the two decedents, one in the truck and one near it, at a point in the highway about fifty-five feet northerly from the railroad track with the truck headed southerly loaded with some brush. The decedents were in the employ of the town and were engaged in picking up limbs broken, by a violent storm, from trees along the highway, and were taking them to a point southerly from the railroad where they were being burned. A third employee of the town, the witness Englerth, was attending to the fire at the point to which the brushwood was being drawn by decedents. He did not see the accident. The railroad runs substantially east and west, and the highway north and south. At the point where the railroad crosses the highway there is a considerable curve in the tracks, the convex side of the curve being toward the north. The railroad crossing was not planked or cemented, the depressions between the rails being filled in with gravel. There are three tracks of the railroad crossing the highway, the northerly one being a switch track, the middle one being the west-bound main track, and the southerly track being the east-bound main track. Owing to the curve at the point of the crossing the rails of the track are not at the same level. As to each track the rail on the outside of the curve is higher than the rail on the inside of the curve, so that in driving a vehicle over the crossing the surface of the roadway rises and falls about five inches and repeatedly as the various rails are encountered. Approaching the railroad from the north there is a seven per cent grade. Plaintiffs’ witness Went-worth, a civil engineer, characterized this as a “ steep grade,” and he also characterized the condition of the surface of the crossing as “ very uneven.” As shown by the engineer’s map and figures, as well as the photographs in evidence, the view toward the east, which one gets in approaching the crossing from the north, is cut off by an old passenger coach which the railroad has set up for use as a depot. This is located forty-two feet from the center of the highway, is sixty feet long and ten feet wide and its southerly side is about seven feet from the nearest track. The extent to which the depot cuts off the view toward the east is best shown by the photographs. These in brief are some of the physical surroundings that confronted the decedents as they made use of this crossing. It was broad daylight, on a clear, dry day. The negligence of the railroad was proven. There was evidence that its train was running at a very high rate of speed and gave no warning in approaching a much-used crossing. Can it be said that, with the burden of [449] proving contributory negligence placed upon defendant, such negligence on the part of decedents so clearly appears, from this record, as to exclude every other reasonable hypothesis? “ If any possible hypothesis based on the evidence forbids the imputation of fault to the deceased, as matter of law, the question is for the jury.” (Chamberlain v. Lehigh Valley R. R. Co., 238 N. Y. 235.) (See, also, Nicholson v. Greeley Square Hotel Co., 227 id. 349.) The case of Schrader v. New York, Chicago & St. Louis R. R. Co. (254 id. 148) is one which went through this court (227 App. Div. 840), and, although it was a death case, there was undisputed proof by an eye witness of contributory negligence on the part of decedent, and the court properly directed a verdict at the end of the whole case. In the instant case there is a total absence of any proof by any eye witness. An imputation of contributory negligence has been based solely on the physical conditions and surroundings of the crossing. Even that may be done if such conditions and surroundings clearly exclude all possibility of due care on the part of decedent. (Cassidy v. Fonda, Johnstown & Gloversville R. R. Co., 200 App. Div. 241; affd., 234 N. Y. 599.) But, in the instant case, the uneven character of the roadbed of the crossing, the steep grade leading up to the crossing, the obstructed view of the railroad to the east, due to the curve and the station, coupled with the failure of the railroad to give warning of the approach of its train, made this a proper case for submission to the jury. Upon the record in this case, and in view of the testimony of the town superintendent of highways that the decedent McGowan “ was hired to drive the truck,” and that he “ was in charge of the gang of these three men,” and that he “ was in charge of the truck,” and in view of the other evidence on the subject, it would not seem that the two decedents could be held to have been engaged in a joint enterprise. As to the defendant Cullen, there is no proof of negligence and the judgments and orders appealed from should be affirmed as to him, without costs. As to the defendant Lehigh Valley Railroad Company the judgments and orders should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concur, Edgcomb, J., in result in a separate opinion in which all concur as to the additional ground for reversal. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.