Einsfield v. Niagara Junction Railway Co.

ADAMS, P. J. The evidence contained in the record before us is clearly sufficient to support a finding that the defendant was guilty of negligence which contributed to the accident in question, for one of the plaintiff’s witnesses testified that he was riding upon the engine which was attached to the freight cars, and that lie engineer had his attention called to the electric car as it was approaching in ample time to have stopped Ms engine before reaching the crossing, but that he apparently paid no heed to the warning, and made no effort to avoid the collision which ensued. We think, however, that it is quite as clear that the accident would not have happened but for the contributory negligence of the plaintiff. He says, it is true, that when he first saw the freight train it was stationary, and that the engine was headed away from the crossing, which circumstance he insists gave him the right to infer that when the train moved it would be in a forward, and not in a backward, direction. He had, however, been operating a car over this same road for some two years prior to the accident, during which time he had crossed the defendant’s tracks at this point several times each day, and was entirely familiar with the use to which the same were put, having, as he. says, “seen several freight trains on the defendant’s road moving at one time.” He ought, therefore, to have known, and presumably he did know, that the defendant’s road was operated merely for switching purposes, and that an engine, while thus engaged, was as liable to move in one direction as the other. Possessed, then, as he undoubtedly was, of this information, he had no right to disre-. gord its obvious import, and take any chances as he approached the junction. The crossing of two railroads, whether the cars thereon are propelled by steam or electricity, presents a situation of danger calling for the exercise of the highest degree of care and prudence upon the part of the persons charged with the operation and management of cars, engines, or trains, and no motorman or engineer has any right to approach a crossing, under the circumstances which this case discloses, without having his motor or engine under perfect control. Coddington v. Railroad Co., 102 N. Y. 66, 5 N. E. 797; Martus v. Railroad Co. (Super. Ct.) 36 N. Y. Supp. 417; Wynne v. Railroad Co. (City Ct. Brook.) 35 N. Y. Supp. 1034, affirmed in 156 N. Y. 702, 51 N. E. 1094; Penny v. Railway Co., 7 App. Div. 595, [565] 40 N. Y. Supp. 172, affirmed in 154 N. Y. 770, 49 N. E. 1101. This, however, is precisely what the plaintiff was doing, for, by his own admission, he came around the curve at the rate of 12 miles an hour, and did not very materially lessen the speed of his car until within 100 or 125 feet of the crossing, at which point he for the first time discovered that the freight train was in motion, although it had been in plain sight from the time he first reached the curve. Upon perceiving that a collision was likely to occur, he undoubtedly did what he could to prevent it; but the car was then running so rapidly, and the track was so slippery, that he found it impossible, even by reversing the power, and using the emergency brake, to bring his car to a stop before it came into contact with the train. In these circumstances the plaintiff not only failed to exercise good judgment and ordinary prudence, but he was proceeding in direct violation of a rule of his company which required that at all street and railroad crossings he should “slow up, and look out”; or, as one of his witnesses put it, that he should not run at a higher rate of speed than four or five miles an hour. In view of the facts to which we have adverted, — and we have collated only such as are most favorable to the plaintiff, — we think the learned trial justice was justified in finally holding that, as matter of law, negligence must be imputed to the plaintiff, which necessarily defeats a recovery. The order setting aside the verdict and granting a new trial should therefore be affirmed. Order affirmed, with costs to the respondent to abide the event. All concur.