Opinion
May Term, 1899.
Thomas Raines, for the plaintiff.
George F. Yeoman, for the defendant.
The evidence is conflicting as to whether the bell was rung or whistle sounded upon the defendant's engine as it approached the crossing. The speed at which the train was going is also in dispute, the evidence of the plaintiff tending to show that it was going at the rate of from fifty to sixty miles an hour, and that of the witnesses called by the defendant that it was going at a much less rate of speed.
Upon the evidence it was clearly a question for the jury to determine whether the defendant was guilty of negligence which caused the injury or not. The only other question involved upon this appeal is whether the plaintiff was guilty of negligence which contributed to the accident which resulted in the injuries sustained by her.
The evidence is uncontradicted that in approaching the crossing where the accident occurred, from the southwest, there is a hill or knoll in the highway, several hundred feet from the crossing, at which point the crossing can be seen. The plaintiff testified that when they reached that point she said to her husband who was driving, "We have to cross the railroad track; look out for the cars." That she was looking and listening at that point, and did not hear or see the train approaching, and that the horse proceeded towards the crossing upon a slow walk, under perfect control; that the horse was gentle and eighteen years old.
After leaving this high ground in the highway, the evidence tends to show that there is an orchard in the angle between the highway and defendant's tracks, and also a snow fence which tends to obstruct the view of an approaching train from the west as one proceeds along the highway, at least until the traveler reaches a point fifty or seventy-five feet from the crossing, measured along the highway. The plaintiff testifies positively that in going that distance she looked two or three times to the west, and did not see the train approaching, and did not see the train until the horse was walking upon the track.
Assuming that the horse was going at the rate of four miles an hour, when the plaintiff was fifty feet from the crossing the train was more than six hundred feet away, and if the horse was going at a less rate of speed and the train at a greater rate of speed, which might be found upon the evidence, the train was still further away from the crossing when the plaintiff was at the point where it is claimed her view of the railroad was unobstructed. The situation was such — the angle made by the railroad and the highway — that it is quite evident that the only way the plaintiff could have seen the approaching train was by turning almost squarely around and looking directly behind her. When she looked to the west by turning partly around, she simply was enabled to see across the point of the angle, and could not in that position see the train.
We think that the plaintiff, considering the way she was seated in the wagon, the fact that she was holding a young child in her lap, the fact that she had warned her husband, who was a competent driver, that they were approaching the railroad crossing, and the fact that she looked toward the west, as appears by her evidence, upon several occasions while going the fifty or seventy-five feet after passing the point where the view was obstructed by the orchard and snow fence, could not be said, as a matter of law, to have been guilty of negligence in not turning her body clear around, in such a way as to enable her to see the railroad track of the defendant for a distance of six or seven hundred feet west of the crossing. The negligence of the husband, assuming that he was negligent, cannot be imputed to the plaintiff. ( Hoag v. N.Y.C. H.R.R.R. Co., 111 N.Y. 199; Hennessy v. Brooklyn City R.R. Co., 73 Hun, 569.)
In the case last cited it was said: "As to the wife, a mere passenger with him in the wagon, she is responsible only for her own neglect, and her right of recovery for injuries cannot be defeated by the negligence of the driver." This case was affirmed by the Court of Appeals. ( 147 N.Y. 721.)
In the case of Weldon v. Third Ave. R.R. Co. ( 3 App. Div. 370) it was held that as it appeared that the plaintiff was taking a gratuitous ride, having no control of the vehicle or the driver, any negligence of Patrick Weldon (the driver) could not be attributed to her. (See, also, Zimmermann v. Union R. Co., 28 App. Div. 445; Bergold v. Nassau E.R.R. Co., 30 id. 438.)
Upon all the evidence and circumstances of this case, we think it clearly was for the jury to determine whether the plaintiff was guilty of negligence which contributed to the injury. ( Greany v. Long Island R.R. Co., 101 N.Y. 419; Massoth v. Delaware Hudson Canal Co., 64 id. 524; Seeley v. N.Y.C. H.R.R.R. Co., 8 App. Div. 402.)
Our conclusion, therefore, is that the plaintiff's exceptions should be sustained, and the motion for a new trial granted, with costs to the plaintiff to abide the event.
All concurred; FOLLETT, J., not sitting.
Plaintiff's exceptions sustained and motion for a new trial granted, with costs to the plaintiff to abide the event.