Appeal from Trial Term, Rockland County.
Action by Leonard Singer, as administrator of Edith L. Singer, deceased, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Judgment modified and affirmed.
John F. Brennan, for appellant.
Albert A. Wray, for respondent.
Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, JENKS, and MILLER, JJ.
Judgment modified, by striking out the provision for extra allowance, and the judgment, as thus modified, and order denying motion for a new trial, affirmed, without costs.
JENKS, J. I dissent.
I think that a new trial should be granted because the verdict is against the evidence. [116 N.Y.S. 295]McDonald v. Met. St. Railroad Co., 167 N.Y. 70, 60 N.E. 282.The action is for negligence. Plaintiff's intestate, a young woman 19 years old, with a number of young men and women, went to the village of Nyack to attend a festivity. To return home she and some of her companions left that village shortly after 12 o'clock midnight. The night was one of clear starlight. They were driven in a wagonette, arranged with a seat in front for the driver and two other persons, and with two seats inside, running lengthwise, to hold three persons on each side. The vehicle was curtained on the sides. The front seat was occupied by the driver and two of the party, including plaintiff's intestate, and the inside seats were filled with her companions. The wagonette, drawn by a team of horses, was driven along the Nyack turnpike, which crosses defendant's rails at grade and at right angles. It was struck and shattered at this crossing by the defendant's express train, which was some hours late. The horses escaped unscathed. The plaintiff's intestate and seven other people in the vehicle were killed. This crossing was guarded by gates on each side of it, known as the east and west gates.
The main issue litigated was whether these gates at the time were up as an invitation, or were down as a barrier. The gates were alike. They were hinged on gateposts and were both controlled by one lever swiftly worked by one man. A gate, when lowered, extended a single wooden arm across the highway about 3 1/2 feet above it. There was a lantern on each gate, which hung over the highway when it was lowered. There is evidence that, if the tip of either gate was broken, the counterbalancing weights would automatically throw up the gates. After the collision both gates were found in almost vertical position. The tip of the east gate was broken off, beginning at a point 9 feet from the end. The tip of the west gate was broken off, and one of the planks of the arm was shattered at its end and broken loose. The east gate was the first gate in the line of approach.
The evidence of the plaintiff to establish that the gates were raised, so as to permit access, is as follows: Palmer, one of the passengers and the sole survivor of the party, with the exception of the young woman, Bird, was the last one on the rear seat in the back, and Miss Bird sat opposite to him. The side curtains of the vehicle were closed when they left Nyack. There was a curtain by the driver's seat which was rolled up. The horses were driven out from Nyack over the crossing on a jog trot. He saw the driver, just before the horses approached the crossing, bend forward and look, turning his head both ways. His words are:
" As the horses and wagon came to the crossing, they didn't come in contact with anything. I knew that there were gates at that crossing. As the wagon approached the crossing, I raised up in my seat and looked for the gate. I didn't see the gates, or either of them. I raised up and looked. I saw the lights in the hotel across the track, on the other side of the track, and I saw the roadbed of the track and rails."
He testifies that up to the time that the wagon passed over one of the rails it had not come in contact with anything. The horses had not come in contact with anything.
[116 N.Y.S. 296] " I looked out through the front of the wagon. I saw between the driver and Miss Singer.*** I mean between their heads."
They were then about 100 feet from the track.
" I looked to see if the gates were down. I looked to see if the gates were down, because they ought to have been down if a train were going by.*** I just raised up and looked out in this space of 8 or 10 inches wide, and then sat down again.*** I saw the lights of the hotel. I am sure they were in the hotel. In any event I am sure I saw lights."
When asked whether he had stated, five days after the accident, to Dr. Walscheim as follows: " I did not see the gates, and did not know whether the gates were up or down" -the witness answered:
" Not that I know of; but I may have said it. If I did say it, it was not true. If I told him that, I lied to him, because I know the gates were not down; but I don't ...