Zwack v. New York, Lake Erie & Western Railroad

FOLLETT, J. This action was begun November 19, 1894, to recover damages for a personal injury, caused, it is alleged, by the negligence of the defendant. There is no exception to a ruling on the admission or exclusion of evidence in the record, and but one exception to the charge is argued. The questions presented arise on the exception taken to the denial of defendant’s motion for a nonsuit. The motion was based on the grounds that the evidence failed to show that the defendant was negligent, or that the plaintiff was free from negligence contributing to the injury. The only exception to the charge discussed by the appellant is the exception to the refusal to charge that the evidence would not justify a finding that the train was running at a negligent rate of speed. The accident occurred at about noon on the 24th day of October, 1894, on Hydraulic street, in the city of Buffalo, which is crossed at grade by the defendant’s double-track railroad. Hydraulic street extends northerly and southerly through the city, and defendant’s railroad crosses it at right angles. Besides the two main tracks crossing this street, there are three side tracks on the south side;of the main tracks, and two side tracks on the north side of the main tracks. In addition to these tracks crossing the street, there are three other side tracks south of the main tracks, and east of Hydraulic street, which do not cross it. The undisputed evidence is that these side tracks east of Hydraulic street are used for the storage of disabled and other cars, and the plaintiff testified that on the occasion in question there were some cars standing on the most southerly of the three side tracks which cross the street, and that on the next side track north there were standing “a whole lot” or "string of cars.” Another witness testified that on the occasion in question two of these side tracks were full of cars, the first one being about 35 feet east of the middle of Hydraulic street. This evidence was not disputed by the defendant, which gave no evidence tending to show that the side tracks east of Hydraulic street were .free from standing cars, so that foot passengers could see trains approaching from the east. The plaintiff testified (and his testimony was not contradicted) that the cars standing on the side track east of Hydraulic street prevented him from seeing the train which came from the east, and ran him down. As before stated, this is a grade crossing. At the time of the accident, it was not guarded by a flagman, by gates, or in any other manner. The plaintiff was a boy ten years and six months old, and was on his way to school, walking northerly on the west side of Hydraulic street. As he approached the crossing, he saw two locomotives fastened together west of the street, and going east on the first or south main track. He stopped, and waited for them to pass, and then looked both ways for the approach of trains, and, seeing none, started to go [823] forward, and, as he reached the north main track, he was run down by a passenger train running west. One of the witnesses, who had the best opportunity for seeing the accident, testified that he was struck by the pilot. Another witness, called by the defendant, testified that he thought the boy was struck by the steps of the first baggage car. This witness was riding on the rear steps of the second baggage car, and was not in so good a position to see the accident as the first witness. Whether the bell on this locomotive was rung was not clearly established. The plaintiff and two or three witnesses did not hear it. One witness said he heard it ring, and one said there was so much noise made by the two locomotives running west that he could not tell whether the bell on the locomotive drawing this train was rung. The principal act of negligence on the part of the defendant relied on for a recovery was the speed at which this passenger train crossed this street. A witness familiar with railroads, sworn for the plaintiff, testified that the train crossed Hydraulic street at the rate of “about twenty miles an hour.” A switchman in the employ of the West Shore Railroad, sworn for the defendant, testified that the train crossed Hydraulic street at the rate of “about twenty miles an hour.” A passenger on the train, sworn for the defendant, testified that the train was not running "over six miles an hour” when it crossed Hydraulic street. The speed of the train was the important issue in the case, and it is a significant fact that none of the employés on it were called by the defendant to testify to the .rate of speed at which it crossed this street on this occasion. The evidence is ample to justify the jury in finding that this train crossed this street at the rate of about 20 miles an hour, and that the side tracks on the south side of the main tracks were so filled with standing cars that they obstructed the plaintiff’s view of this train coming from the east. The following city ordinance was read in evidence: “It shall not he lawful for any steam railroad to propel any engine or ears across any public street at grade in the city of Buffalo at a greater rate of speed than six miles per hour, under a penalty of fifty dollars for each of-fence.” The evidence in this case was amply sufficient to justify the conclusion that the defendant was guilty of negligence in the management of its business at this place and on this occasion, and that its neglect caused the accident. Whether the plaintiff was guilty of contributory negligence was, under the evidence, a question of fact for the jury. He looked both ways, as he testified, for the approach of trains. One witness, however, testified that he did not see the plaintiff look in either direction for trains; but looking to the east would, under the circumstances, have availed him little, for the view was obstructed by the cars upon the sidings. It is urged by the learned counsel for the defendant that it is not neglect for a railroad to cross a street at a high rate of speed, and he cites in support of his contention cases arising out of accidents at the crossings of country highways. These cases have no application to the rate of speed at which it is proper to run trains over' grade crossings in a populous city. The circumstances are entirely [824] dissimilar. It has never been held, and I think it will never be held, that it is not evidence of negligence for a railroad to run its trains at the fate of 20 miles an hour over'unguarded grade crossings in a city having a population of more than 250,000. It is urged that the plaintiff failed to show that this street was legally laid out by the authorities of the city. It was shown by uncontradicted evidence that it had been used as a public street for five years for the passage of teams and footmen, which was sufficient to raise a presumption that it was one of the public streets of the city. This being the state of the evidence, if the defendant had wished to raise the question that the ordinance of the city was not applicable to this case, it was its duty to give evidence to rebut the presumption arising from the evidence given by the plaintiff. It is not necessary in crossing cases for plaintiffs to show that a country highway or a street in a city or village was legally laid out, nrsuant to the statutes in such case made and provided. W.e find no error in this case', and the judgment and order should be affirmed, with costs. All concur except ADAMS, J., dissenting.