Miles v. Fonda, J. & G. Railroad

STOVER, J. The circumstances under which this accident occurred have been heretofore reviewed by this court in the case of [730] Shires v. Railroad Co., reported in 80 Hun, 92, 30 N. Y. Supp. 175. In the case cited the action was brought by the driver and the owner of the vehicle. This action is brought by a passenger. I think the evidence in this case shows a different state of facts than those appearing in the Shires Case. In this case four witnesses have testified that they were listening; that no bell was rung, whistle blown, or signal given as defendant’s train approached the crossing. Other witnesses testified that a bell was rung. Hence this question was properly submitted to the jury!1 As to the contributory negligence of the plaintiff, in the Shires Case the plaintiff testified that he did not look to the south, from which direction the train was approaching, after he reached a point 45 feet from the railroad track. In this case plaintiff swore she looked when 25 or 30 feet from the track, but did not see the approaching train. The question for the jury was whether the passenger had been guilty of contributory negligence, and I think that question was properly submitted to the jury. On the whole case, as the facts appear on this trial, I think the question of contributory negligence was for the jury, within principles established in Hoag v. Railroad Co., 111 N. Y. 199, 18 N. E. 648; Massoth v. Canal Co., 64 N. Y. 524; and like cases. In the Hoag Case, deceased and her husband could see down the track a' long distance, for 70 feet before reaching it; yet the court held the case should have been submitted to the jury. In this case there is evidence that plaintiff, was going from 4 to 6 miles an hour, and the train 18 miles. At that rate the wagon was traveling about 7 feet per second, and the train about 26 feet. Probably the train could not' have been seen before the wagon reached the elm tree, 60 feet from the track. When the plaintiff passed the tree, the horse was only about 7 or 8 seconds from the ■track, and the train may not have been in sight. It should be remembered that the railroad track made a short curve from the bridge to the crossing, and that plaintiff, Shires, and Shires’ wife, were sitting on one seat, facing the west. When the wagon was about 30 feet—say 4 seconds—from the track, at which point plaintiff said she looked to the south, the train may have been 100 feet, distant. The evidence of the plaintiff that she looked and did not see it is not incredible. The train was coming around a curve, behind her. As she sat facing the west, with two others in the seat, doubtless unable to • turn around and look back of her, it is not improbable that the cars were not in her line of vision, looking to the left as far as she could see. The witnesses who afterwards stood in the street at the place of the accident, with their faces to the south, could see to the railroad bridge, but a person driving to the west, sitting on a seat with two others, and naturally unable to look backwards, could not, very likely, see more than 75 or 100 feet, as Cross testified. As we have seen, when plaintiff passed the elm tree, the horse’s head was probably about eight seconds from the track. Plaintiff then might; without being deemed negligent, turn and look to the right, and after that to the left, as she swears she did at 25 or 30 feet from the track. When she again looked, the horse was on the track. The facts were all before the court and [731] jury. I do not think it clearly appeared from the uncontradicted evidence that plaintiff’s negligence contributed to her injury, and hence conclude the case was properly disposed of on the trial. PUTNAM, J., concurs.