CMENARVIZ CEPENOBWIZ, as Administrator, etc., of JOHN KTKOWUGK, Deceased, Appellant,
THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.
APPEAL by the plaintiff, Cmenarviz Cepenobwiz, 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 Onondaga on the 21st day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk's office on the 20th day of May, 1908, denying the plaintiff's motion for a new trial made upon the minutes.
The action was commenced on the 6th day of December, 1907, to recover damages for the death of plaintiff's intestate alleged to have been caused solely through the negligence of the defendant.
Oliver D. Burden, for the appellant.
A. H. Cowie, for the respondent.
MCLENNAN, P. J.:
On the 29th day of October, 1907, at about nine-forty P. M., plaintiff's intestate and two companions left the factory or plant of the Pierce, Butler & Pierce Manufacturing Company, where they were employed, to go to their respective homes. They went from such plant through an opening in a fence which marked the northern boundary of defendant's right of way, and while attempting to cross the most northerly or westbound passenger track, plaintiff's intestate was struck by an engine approaching from the east drawing a fast passenger train, and sustained injuries which caused his almost instant
death. The factory or plant of Pierce, Butler & Pierce is located in the town of De Witt, a short distance east of the easterly line of the city of Syracuse. South of and adjoining the Pierce, Butler & Pierce premises is defendant's right of way, which was occupied first by the two most northerly or passenger tracks, which were parallel and extended practically east and west, the most northerly being known as the westbound and the other as the east-bound passenger track. Still further to the south were the tracks of the Chenango Valley railroad, which was operated by the defendant. Still further to the south, and on the southerly boundary of defendant's right of way, there was a picket fence through which a hole had been made sufficiently large to permit people to pass through it. On the southerly side of such fence there was an open field comprising several acres, and south of it was the towpath of the Erie canal. From the opening in the fence on the northerly line of defendant's right of way, and leading directly across such right of way and over the several tracks of defendant to the opening in the fence on the southerly line, across the vacant field and to the towpath, there was a well-defined path at the time of the accident, which had existed for several years, made by the employees of Pierce, Butler & Pierce and of other manufacturers located in the vicinity, and such path had been and at the time was being extensively used by such employees to the knowledge of the defendant.
Under such circumstances the learned trial court properly held and charged the jury, in substance, that if the path in question existed and was of the character disclosed by plaintiff's witnesses, and the defendant had consented or given an implied license to strangers, including the plaintiff's intestate, to cross its tracks, over and upon such path, then the duty was imposed upon the railroad company to give reasonable warning to plaintiff's intestate of the approach of the train which struck him and caused his death, and that if it failed in the performance of its duty in that respect it was guilty of actionable negligence.
We conclude that the trial judge also properly held and charged that if the headlight upon the engine was burning the plaintiff's intestate, if he failed to see it, was guilty of contributory
negligence. For a distance of three-fourths of a mile or more to the east from the place where the accident occurred, the tracks on which the engine was approaching and which struck the deceased were straight and such engine was in plain view of the deceased for that distance. If he had looked, as it was his duty to do, he could have seen the approaching train, if the headlight was burning. Concededly, his eyesight was good and, therefore, it will not do to urge that he looked and did not see. The engine was right there and if he looked intelligently and for the purpose of seeing if the headlight was burning he saw it and in going upon the track in front of it he was guilty of negligence as a matter of law.
Although the question, namely, whether or not the headlight upon the engine was burning at the time of the accident, was possibly a question for the jury, the evidence on that question was exceedingly meager and would have justified the jury in rendering the verdict which it did because of the contributory negligence of the deceased.
The only evidence given on behalf of the plaintiff tending to show that the headlight was not burning was given by two witnesses. One of them, Cornakowicz, was one of decedent's companions in crossing the tracks and testified as follows: 'When we left the works [Pierce, Butler & Pierce's works] we got up as far as the tracks and noticed a train approaching them, going east, on the second track from the foundry. When I got up to the track we stopped until the train passed; we noticed a train approaching and we stopped till the train passed; then the train passed and we looked each way and we didn't notice anything; we hadn't noticed a thing when we crossed the first track; I was the first man crossing the tracks; when I crossed the track I looked back; when I looked back I noticed another train approaching from the opposite direction, on the first track from the foundry. Then I warned the fellows behind of the approach of the train. The next ...