FRANK B. PALMER, as Administrator, etc., of JEANNETTE H. PALMER, Deceased, Appellant,
NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.
APPEAL by the plaintiff, Frank B. Palmer, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rockland on the 10th day of March, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 3d day of March, 1910, denying the plaintiff's motion for a new trial made upon the minutes.
George A. Blauvelt, for the appellant.
Mortimer B. Patterson, for the respondent.
The plaintiff's intestate was killed at the West Nyack crossing of the defendant's railroad in the county of Rockland on the morning of February 23, 1908. She was one of the occupants of a wagonette which was being driven westward upon the highway and which contained nine persons. The wagonette was struck by a south-bound train when the former reached the tracks of the defendant, the impact resulting in the injury of two of the occupants of the wagonette and the death of seven. The contention of the plaintiff in the case at bar, as in other cases resulting from the same accident which have been before this court on appeal, was that the crossing gates maintained by the defendant were up at the time, and that contention has been sustained in the other cases on evidence substantially similar to that presented in this instance. An affirmance of a recovery in the case of Singer v. N.Y. C. & H. R. R. R. Co. (132 A.D. 890) was upheld in the Court of Appeals by affirmance without opinion (197 N.Y. 588). To the same effect was the case of Dieterlen v. N.Y. C. & H. R. R. R. Co. (affd. by this court without opinion, 134 A.D. 977).
May v. N.Y. C. & H. R. R. R. Co.
(137 A.D. 7), while the judgment and order were reversed on the question of contributory negligence, the case being that of the driver of the vehicle, the court, referring to the Singer Case (supra), said (p. 8): 'In that case the question of defendant's negligence must have been similar to that now presented, and need not be discussed, although in the present instance it was properly submitted to the jury. * * * There is sufficient evidence that the gates were up.'
In the case at bar, also, there was sufficient evidence that the gates were up at the time of the accident, but I think the judgment and order must be reversed for an error in the charge of the learned court, made at the request of the defendant's counsel after the jury had been charged in chief and just before they retired to deliberate on the verdict. The evidence established the fact that the gates in question were in charge of an employee of the defendant named Kauffman. He tended the gates at night and was relieved by a daytender in the morning. He testified that he closed the gates on the night of February twenty-second at about the hour of 11:25, and it was proven that the accident occurred at 12:37 the next morning. He testified that it was his general habit to lower the gates at about eleven o'clock at night and that he generally left them down until he was admonished by noise or otherwise that some one wanted to go through. I say that he testified that he put the gates down at about 11:25 on the night in question, although his testimony as to the hour and as to his custom with respect to the gates was not very clear. He said: 'On the night of the accident I left the gates down about 11:25, maybe 12 o'clock. * * * My custom as to lowering the gates at night was this: I had nights very foggy, I had them down all night. I never raised them until the day man come, but usually I leave them down about eleven. By the Court: I put them down about 11 and leave them down until somebody comes and wants to get through sometimes, and sometimes they holler. * * * I had been in the habit of lowering the gates on foggy nights all night, and about eleven o'clock we left them down. * * * I have left them up all night.'
After Kauffman put the gates down on the night in question he went into his shanty (sometimes referred to as the 'station
') for a smoke, and remained there until the accident occurred, being on his knees shaking down the ashes in the stove when he heard the train coming, and that he ran out as the accident occurred. The shanty referred to is close to the south-bound track and near the highway. It had a window on the north and one on the south side, looking up and down the tracks, but had no window facing the direction from which the wagonette approached upon the highway. Kauffman had no means of knowing of the approach of trains to the crossing from either direction other than the scheduled times ...