ALEXANDER F. REID, as Administrator, etc., of RUSSELL A. REID, Deceased, Appellant,
THE LONG ISLAND RAILROAD COMPANY, Respondent, Impleaded with the CONEY ISLAND AND BROOKLYN RAILROAD COMPANY, Defendant.
APPEAL by the plaintiff, Alexander F. Reid, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, the Long Island Railroad Company, entered in
the office of the clerk of the county of Kings on the 16th day of May, 1910, upon the dismissal of the complaint as to said defendant by direction of the court at the close of plaintiff's case on a trial at the Kings County Trial Term.
Robert H. Ernest, for the appellant.
William C. Beecher [Joseph F. Keany with him on the brief], for the respondent.
The plaintiff having been nonsuited, is of course entitled to the most favorable view of the evidence which a jury would have been justified in taking, and we are not precluded by anything which was decided in the case of Johnson v. Long Island R. R. Co. (142 A.D. 948), growing out of the same accident, from determining the rights of the parties upon the record now before us. The plaintiff's intestate was a passenger upon an open trolley car operated by the Coney Island and Brooklyn Railroad Company on Coney Island avenue, borough of Brooklyn, on the 15th day of August, 1907. The car was running in a southerly direction, bound for Coney Island, and was obliged to cross the tracks of the Long Island railroad at right angles, at grade, at a point known as Manhattan crossing. The Long Island Railroad Company had maintained a flagman at this point for a period of at least ten months prior to this accident, and it was his custom to wave a red flag across the tracks of the trolley railroad to warn those operating these cars of an approaching train. There were no gates at this crossing, and a high board fence parallel with the tracks of the Long Island railroad, and close up to its tracks, obscured the view of those approaching by the trolley cars. On the day of the accident the trolley car approached the crossing slowly, and either came to a full stop or ran so slowly that the conductor of the trolley car ran ahead and looked both ways upon the right of way of the respondent and signaled the motorman to come on, whereupon the motion of the car was increased and it ran forward upon the tracks of the steam railroad, where it was run into by a dirt train backed down upon the crossing by an engine some distance away, and plaintiff's intestate
received injuries which proved fatal. One witness testified that, 'I noticed when we got to the crossing the flagman was standing out there waving his flag; he had the white flag he was waving, and he had the red flag rolled up behind his back,' so that it appeared from the evidence that, while the flagman testified that 'In my hand I used a red flag to warn the trolley car,' and, referring to the same red flag and his custom, 'I stood between the two trolley tracks and held it across the trolley track,' there was evidence that the flagman was not following his usual custom of using the red flag to warn trolley cars, but had the same folded up behind his back. Moreover, there was evidence from which the jury would have been justified in finding that this dirt train was backed down over a grade crossing in a populous city, where there was an obstructed view of the tracks, without the sounding of a whistle or bell, or taking any precautions to guard against an accident. It is true that there was testimony that there was a man standing on the rear car of the dirt train, but none of the witnesses saw him do anything to avert the accident, and there is no evidence that he was upon this car for the purpose of giving warning, or of stopping the train. If he was not there for that purpose, if he was a mere licensee upon this car for his own purposes, the fact of his presence is of no consequence whatever; if he was there for the purpose of guarding against accidents, then it was for the jury to determine whether he had discharged this duty, and in either event, it seems to us, there was a matter which, unexplained, called for a submission to the jury. It should be remembered that the fact that the conductor and motorman of the trolley car may have been negligent, or that they may have erred in judgment, is not to be charged against the plaintiff's intestate; he was upon the trolley car, having nothing to do with its management or control, and if the defendants were both negligent the plaintiff is entitled to recover.
It must be admitted that the plaintiff's testimony is in many respects of a negative character, but we are of the opinion that, undisputed, the jury might properly have found that the defendant did not exercise that reasonable degree of care which the circumstances of the case demanded. The claim of the respondent upon this appeal that the plaintiff's own witness
testified to the sounding of a whistle on approaching this crossing, is hardly borne out by the record. This witness was called by the plaintiff for a limited purpose, and the only suggestion in his testimony of the sounding of a whistle is that he says: 'I remember this day when the accident happened at this crossing; when the trolley car and the train had a collision. I was in the shanty when I first heard the train. I first heard a whistle.' He does not identify this whistle with the train that backed down over this crossing, or with any train; it may have been any kind of a whistle so far as the evidence discloses, and it may have been when the train was miles away, for he gives no information as to the length of time intervening between his hearing the whistle and the accident, or anything which would in any manner tend to show that the people operating this particular dirt train which worked the injury had taken any of the ordinary precautions which the situation obviously demanded.
In the Johnson case, relied upon by the respondent, it appeared from the testimony of the defendant's engineer, called by the plaintiff, that the whistle was blown; there was no contradiction of this, and the flagman likewise testified to the same fact. Besides, upon the trial of the Johnson case the flagman testified that when he heard the whistle blow for this approaching train he took his red flag and went between the two trolley tracks on the side of the Long Island railroad track from which the trolley car was approaching, and held the red flag across the trolley track ...