CURTIS M. SHELDON, Appellant,
THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.
APPEAL by the plaintiff, Curtis M. Sheldon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 12th day of April, 1911, upon the dismissal of the complaint by direction of the court after a trial at the Oswego Trial Term, and also from an order entered in said clerk's office on the 1st day of May, 1911, denying the plaintiff's motion for a new trial made upon the minutes.
Giles S. Piper, for the appellant.
Francis E. Cullen, for the respondent.
South Second street is an important street in the city of Fulton, extending in a northerly and southerly direction, and the track of the defendant is laid in said street along its westerly side. Cayuga street intersects South Second street, and the station of the defendant is immediately north of this intersecting street.
On the 21st of March, 1908, the plaintiff, a farmer, drove a team of horses north along the easterly side of South Second street. The horses were about five or six years old, gentle and steady, and plaintiff daily delivered milk to the railroad station with them, and they had never shown any signs of fright when in proximity to trains or engines. He had a lumber wagon containing some apples which he was selling. His wife was with him in the wagon and held the team as he delivered the apples. He stopped his team near the easterly curb in South Second street and carried a crate of apples to the residence of a man named Nelson on the westerly side of the street, leaving his wife in the wagon in charge of the team. As he reached the rear of the house he heard a train coming up South Second street from the north and hurried back to his horses, taking hold of the reins and standing by their heads. The train stopped at the station.
The plaintiff says the head of the engine was about fifteen or twenty feet from him, although the weight of the evidence is that the distance is considerably greater than his estimate. As the train started up a large volume of steam, with an unusually loud hissing noise, escaped from the engine, frightening the horses, causing them to run, and the plaintiff was thrown down and very seriously injured. He testified: 'I was standing nearer the curb than the tracks. I had turned the horses' heads off toward the curb. I stood in front of one horse. I stood toward the railroad tracks from that horse, so that I was between the team and the tracks. I was in front of one of the horses. When the train pulled up it blew off this steam when it started. The train started and this steam came
right out all at once and the team jumped. That is all I can remember at that time. I was thrown. It came right out in a volume, passed by me, went all over the team and me too. The team ran up in an alley between two buildings. I landed by the side of the street.' And again: 'It came out from the side in a large volume. It seemed to come out and spread as it came. It came fast, all to once. It came right out against me and the team. When that came out there and came over me I could not look through the steam and see the engine. I was blinded by the steam. I couldn't see through it.'
The witness Nelson testified that the steam came from cylinder cocks on the engine and out on the sidewalk. While he later testified that he was not certain that the steam came through the cylinder cocks, he said it escaped from under the steam chest behind the front wheels of the engine.
Mrs. Sheldon, the wife of the plaintiff, gave this description: 'When the train started the steam came out. It came out like a loud hissing noise down to the ground, just behind the cowcatcher on the side of the engine, on my side. When I saw it it looked like pencils; went right down to the ground; this was when it started; it came down to the ground and then it would rise; cover us; I couldn't see; that is, when it got up to me it covered me. It covered my husband and the horses. It came out in a cloud. The thing that it came out of was just on the side of the engine, back of the cowcatcher; well, I should say a little over the front wheels. It was round; kind of long. It did not come out as one continuous burst of steam; it came a loud hissing noise and a breaking, then again a loud hissing noise. The horses started when the steam struck them.'
An engineer of long experience, testifying as an expert, said that the steam came either from open cylinder cocks or leaking cylinder heads. He also testified that it was unnecessary to have these cylinder cocks open in order to start the train.
The fireman on the train testified on behalf of the defendant and did not claim it was necessary to open the cylinder cocks to move the train, although it was going up grade; but he testified that these cylinder cocks were not open and that no unusual or ...