MARY SCHUSTER, as Administratrix, etc., of VALENTINE SCHUSTER, Deceased, Respondent,
THE ERIE RAILROAD COMPANY, Appellant.
APPEAL by the defendant, The Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29th day of October, 1910, upon the verdict of a jury for $1,500, and also from an order entered on the same day denying the defendant's motion for a new trial made upon the minutes.
The action was commenced on the 15th day of June, 1909, to recover damages resulting from the death of plaintiff's intestate alleged to have been caused solely through the negligence of the defendant.
The only questions presented on this appeal are: (1) Was the evidence such as to properly support the findings of the jury
that the defendant was guilty of negligence which caused the death of plaintiff's intestate; and (2) that the deceased was free from contribuory negligence?
John W. Ryan, for the appellant.
Clifford E. Branch and Hamilton Ward, for the respondent.
MCLENNAN, P. J.:
The accident which is the subject of this litigation occurred on the 16th day of May, 1909, in the forenoon between ten and eleven o'clock. The defendant operated a single-track steam railroad extending practically east and west through the town of Hamburg in the county of Erie. The State road, so called, one of the principal highways in said town, runs north and south and crosses the tracks of defendant's railroad at practically a right angle. Just prior to the accident plaintiff's intestate, who was twelve years and four months of age, a bright, active boy, about four feet in height, in company with his brother who was sixteen years of age, left their home, where they resided with their father and mother, situate on the State road, about 1,350 feet south of the crossing, to go to a store situate north of the crossing to purchase some groceries for the family. An engine drawing a passenger train going east struck plaintiff's intestate at the crossing, causing his instant death. At the time of the accident there was a strong wind blowing from the east and against the approaching train. The evidence very conclusively established that the train approached the crossing at a speed of at least between forty and fifty miles an hour. The track was on a down grade towards the crossing and to the east of 65 feet to the mile. At the time of the accident the train was coasting, the steam being shut off, and was making comparatively little noise.
It is practically uncontradicted that on the south side of the railroad track and parallel with it there is a bank forty or fifty feet in length and which extends to within six feet of the highway. The height of such bank was variously estimated by the witnesses to be from four to six feet. A civil engineer, who was a witness for defendant, estimated its height at five feet. The width of the bank was from fifteen to twenty feet. Indeed,
a witness called by the defendant thought it was much wider. The bank came down to within four or five feet of the southerly rail of the track. Upon this bank, covering its entire surface, there was a thick growth of weeds, brush and bushes, which stood upwards of four feet high above the top of the bank, and there were at the time leaves upon such bushes. In addition to these bushes there were other permanent growths and obstructions upon the bank, such as hickory and elm trees and fence posts and telegraph posts which were the same in winter as in summer. The growth of bushes not only stood thick upon the top of the bank, but near the crossing the bushes hung over the edge of the bank and leaned towards the tracks so that they came within four or five feet of the track. Witnesses were called by plaintiff who testified, and it is self-evident, that this bank, with the growth of bushes and other obstructions upon it, materially interfered with a person's ability to see a train approaching from the west as such person was proceeding north on the highway. Indeed, witnesses testified that in their opinion it was impossible to see four hundred feet up the track from a distance of five feet south of the south rail and that no more than half that distance could be seen from a point ten feet away from the track.
The plaintiff urges and the jury has found that the defendant was guilty of negligence in that it failed to give proper warning of the approach of the train. It is insisted that the evidence justifies the conclusion that the bell was not rung and that no whistle was sounded except the emergency whistle, which was used just as the deceased was struck.
It is urged on behalf of the defendant that all the evidence tending to show that the bell did not ring or that the whistle was not sounded for the crossing is negative evidence and should not be allowed to prevail as against the positive evidence of the engineer, fireman, train conductor, a clerk employed by the defendant, a passenger on the train and one witness who was driving toward the scene of the accident on the State road at a point 800 or 900 feet north, all of whom testified that the whistle for the crossing was ...