Opinion
October 30, 1914.
Robert Wilkinson, for the appellant.
Walter Farrington [ George Card with him on the brief], for the respondent.
The plaintiff has recovered a verdict for the negligence of the defendant in the erection and the maintenance of its sign with the legend "RAIL ROAD CROSSING LOOK OUT FOR THE CARS" at a road crossing of defendant's railway tracks. He complains that when he was about to drive his vehicle over the tracks his horse took fright at the rattling or creaking of the sign, ran away and threw the plaintiff out and into a hole distant about 8 feet from the road. The plaintiff offered proof that the pole of the sign was slightly loose in the earth, that the braces were loose, the nails had worked loose and the boards of the sign were "shaky" so that the play of the wind caused them to rattle or to creak. He also offered proof that on divers other occasions other horses had been more or less thus frightened, and that about a year before the witness Banks had told the section boss that he had better attend to the sign, as it might frighten someone's horse. The casualty occurred about 11 o'clock of a "blustery" December night, when, according to the plaintiff and his witnesses, the wind was very high, and blew "terribly * * * at spells." Both the plaintiff and his sister, who was his companion, testify that they did not hear any noise as they approached the crossing, but only as they attempted to cross it, when, according to the plaintiff, there came "a sudden gust of wind which rattled the sign post."
The obligation of the defendant was that of ordinary care and caution. ( O'Sullivan v. Knox, 81 App. Div. 438; modified as to form of order only, and affd., 178 N.Y. 565.) If the result of this creaking or rattling was not within the ken of reasonable prudence and foresight, then proximate cause was not established. ( Rowley v. Newburgh Light, Heat Power Co., 151 App. Div. 65, 71; Beetz v. City of Brooklyn, 10 id. 382.) I think that the defendant under its said obligation should not reasonably have apprehended what SPRING, J., in O'Sullivan's Case ( supra), aptly terms the "corresponding occurrences," and that, therefore, the verdict was not justified by the evidence. ( O'Sullivan v. Knox, supra. See, too, McKenzie v. Waddell Coal Co., 89 App. Div. 415, citing Lilly v. N.Y.C. H.R.R.R. Co., 107 N.Y. 566; Saverio-Cella v. Brooklyn Union R.R. Co., 55 App. Div. 98.)
I advise a reversal of the judgment and the order.
THOMAS, CARR, STAPLETON and PUTNAM, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.