Parsons v. New York Central & Hudson River Railroad

Haight, J.: This action was brought to recover damages for the alleged negligent killing of the plaintiff’s testator, Kirk P. Pars'ons. The deceased, on the day of the accident, took the defendant’s train as •a passenger, at the city of Buffalo, for La Salle, in the county of Niagara. He proceeded on his journey as far as the station known as the Perry, where he had relatives living on the west side of the track and adjoining the station, but opposite to the station house. As the train entered the station grounds and before it came to a •stop, the deceased stepped from the forward platform of the car on which he stood, and alighted on the space between the east-bound and west-bound tracks. He then walked at a rapid gait by the side -of the train, and diagonally across the west-bound track, but before passing the west-bound track he was struck by a freight train going west and killed. In the submission, of the case to the jury the defendant’s counsel requested the court to charge the jury that “if Parsons was a pas-senger from Buffalo to La Salle and got off the train at Ferry street ¡station, while the train was in motion, intending to return to the train and continue his passage on the same train to La Salle, and without looking or listening for approaching engines or trains [132] passed upon tbe west track where he was injured, the defendant, at the time he received such injury, owed him no duty as a passenger, and is not liable for a breach of duty to him as a passenger, and there could be no recovery in this action.” The court refused so to-charge, and the defendant’s counsel excepted. Defendant’s counsel also asked the court to charge “ if, by looking, Parsons could have seen the train approaching and avoided injury, and failed to do so, he is chargeable with contributory negligence and no recovery could be had.” The court refused so to charge, and defendant’s counsel duly excepted to such refusal. Defendant’s counsel also requested the court to charge “if Parsons would have seen the approaching locomotive in season to have avoided it, had he looked before attempting to cross, it will be presumed he did not look, and by omitting so plain and imperative a duty he will be deemed to have been guilty of negligence, which precludes a recovery.” The court refused so to charge, and the defendant duly excepted. Defendant’s counsel also requested the court to charge that. “ Parsons was bound to look down the west track before going upon it. By down,’ I mean to the north. If he failed to do so it was negligence on his part and no recovery could be had.” This the court refused to charge and defendant’s counsel duly excepted. These exceptions and refusals to charge present the only questions which we deem it necessary to consider upon this appeal. It appears-that this ease has been once before considered by this court on a former appeal, and it was then held that it was not a proper time to leave the train when it was in motion and before the defendant had signaled passengers to alight; and that the deceased having left the train under those circumstances, could not claim any other degree of care from the defendant while he was attempting to cross its tracks, than if he had not previously borne to it the relation of passenger; and that as to the question of negligence on the part of the deceased, he was bound, under the circumstances, to use the same care in attempting to cross the tracks as would be required of a person attempting to cross upon a highway. That the running of the freight train past the station before the passenger train had come to a halt for the discharge of its passengers was not, as a matter of law, a breach of any duty which the defendant owed to the deceased as a passenger or otherwise. [133] It is not our purpose, in considering this appeal, to adopt any other or different rule, for we believe it to have been correctly stated by this court on its former review of the case. The rule is now well settled that when a passenger train stops at a station to receive and discharge passengers, it may be assumed that the railroad company, in the exercise of ordinary care, so regulates the running of its trains as to afford safe ingress and egress to and from its trains to its passengers, and that they are not called upon to exercise that degree of vigilance which is required of persons crossing upon a highway. (Terry v. Jewett, 78 N. Y., 338; Brassell v. The N. Y. C. and H. R. R. R. Co., 84 id., 243.) This rule, however, does not exist until the passenger train has ■stopped for the purpose of receiving and discharging passengers. In the case of Terry v. Jewett, the passenger train had arrived at the depot and stopped. It then started to draw up in front of a platform, from which milk was to be taken on board. The deceased rushed from the depot across the track towards the passenger train, and she was struck and killed by a freight train passing between the depot and passenger train. In this regard the case is distinguishable from the one under consideration, for she might well have inferred by seeing the train in motion after it had once stopped that it was about to proceed upon its journey, not knowing that it was the intention to stop at the platform. In the case of Brassel v. The New York Central and Hudson River Railroad Company, the train had stopped for the discharge •of its passengers, and all or nearly all of the passengers had alighted from the train when the deceased stepped out and then turned to assist an old lady who was accompanying her from the train, and ■after doing so started to cross the other tracks of the corporation and was struck by a passenger train. So that Parsons, by jumping from this train whilst it was in motion, before it had stopped for the discharge of its passengers, did so at his peril. He had no right at that time to assume that other trains would not be passing upon the west-bound track, and in attempting to cross the same he was bound to make use of the same vigilance as crossing upon a highway. If, however, he alighted from the train whilst it was in motion, and then continued to walk by the side of the train until it came to a stand, then we [134] are of the opinion that he, with the other passengers, would have the right to assume that no trains would run through the depot so-as to endanger the passengers entering or leaving the train, and that he would not then be called upon to make use of the vigilance that he otherwise would. It is now well settled that an individual crossing a railroad track upon a highway must both look and listen. He must make a vigilant use of his eyes and ears before crossing the track. (Mitchell v. The. N. Y. C. and H. R. R. R. Co., 2 Hun, 535; affirmed, 64 N. Y., 655; Wilcox v. Rome, W. and O. R. R. Co., 39 id., 358-361; Cordell v. N. Y. C. and H. R. R. R. Co., 75 id.. 330-332; Kellogg v. N. Y. C. and H. R. R. R. Co., 79 id., 72-76; Becht v. Corbin, 92 id., 658.) Some of the requests to charge are within the precise language of the authorities, and if the rule is to prevail that the deceased was bound to exercise the same vigilance that he would in crossing a highway, these requests were proper and should have been charged. It is contended, however, on the part of the respondent that the case now differs from the one that was before this court upon its former review; that this case tends to show that the passenger train had come to a halt before Parsons attempted to cross the other tracks and before he was struck and killed. It does not appear, however, that the case was tried or submitted to the jury upon this theory. Several witnesses testify that the passenger train moved from a-half to the length of a coach after the freight train passed. The only testimony in the case tending to show that this was not so is the testimony that several passengers had got off of the train on the depot side when Parsons was struck. It appears that about 120 passengers got off at this station, and whether these persons had stepped from the train before it stopped or not does not appear. The respondent’s witness, upon this question, when asked if the train had come to a stop when the freight train passed, answered, “Well, I can’t testify positively as to that.” This is all the testimony to which our attention has been called tending to show that the train had stopped. The court in its charge to the jury stated that “he (Parsons) proceeded on the train to Black Eock Perry station, and there, before the train had stopped, it would seem from the evidence, he alighted from the train and attempted to pass across the westerly [135] tract in a diagonal direction towards the hotel, and as he stepped npon the westerly track was struck by the locomotive,” etc. The respondent did not except to this charge or request the court to submit to the jury the question as to whether the passenger train liad stopped or not prior to the passing of the freight train. It thus appears that this question was not left for the consideration of the jury. The jury was called upon to determine the question of the deceased’s negligence upon the theory that he attempted to cross the defendant’s tracks before the passenger train had stopped to discharge its passengers, and upon that theory of the case and in the absence of evidence that there was anything to distract his attention, the appellant was entitled to have the above requests charged. Judgment and order reversed and a new trial ordered, with costs to abide the event. Beasley, J., concurred; BaeKee, J., concurred in the result. Judgment and order reversed and new trial ordered, with costs to abide the event.