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(191 App. Div. 732)

NEUBAUER v. NASSAU ELECTRIC R. CO.

(Supreme Court, Appellate Division, Second Department. May 7, 1920.) 1. Appeal and error Ouw 864—On appeal from judgment alone, appellant may

claim that verdict was against weight of evidence.

On an appeal from a judgment alone, appellant may make the claim that the verdict was against the weight of the evidence, in view of Code

Civ. Proc. $ 1346. 2. Street railroads fm 114 (14)—Auto truck driver shown to be guilty of con

tributory negligence.

In an action for injuries to the driver of an auto truck struck by defendant's street car, evidence that plaintiff saw the car approaching before starting to cross and did not thereafter look at it, although it was in plain view and rapidly approaching, held to require a finding that he

was guilty of contributory negligence. Appeal from Trial Term, Kings County.

Action by John A. Neubauer against the Nassau Electric Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

Argued before JENKS, P. J., and MILLS, PUTNAM, BLACKMAR, and KELLY, JJ.

Harold L. Warner, of New York City, for appellant.
George F. Hickey, of New York City, for respondent.

MILLS, J. The action was brought to recover damages for personal injuries which the plaintiff claimed to have sustained through the negligence of the defendant, in consequence of which one of the defendant's cars collided with an automobile truck driven by plaintiff, at or near the intersection of Avenue J with Ocean avenue, in the borough of Brooklyn, on the 25th of March, 1918.

[1] The main contention of the appellant here is that the plaintiff was guilty of contributory negligence in not looking again before he attempted to cross the tracks; when some 50 feet below that point, he had looked back to the south and actually seen the car approaching from that direction. I am not clear that the appellant is in a position to raise that point in just that way. While at the end of plaintiff's case the defendant moved to dismiss upon the ground, among others, that plaintiff had not proven himself free from contributory negligence, defendant made no motion to dismiss at the end of all the case; and by its request to charge it apparently consented to the submission of the question of contributory negligence to the jury as a question of fact for them to decide, at least in the first instance. A motion for a new trial was made and denied, but no order denying that motion appears in the record and the notice of appeal is limited to the judgment. I understand, however, that even on an appeal from a judgment alone the appellant may now make the claim that the verdict was against the weight of evidence (see section 1346 of the Code of Civil Procedure). It seems to me that the only difficult question presented by the appeal is this one, namely: Was the finding,

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(182 N.Y.S.) which the verdict imports, that plaintiff was free from contributory negligence, against the weight of the evidence ?

The other contention of the appellant is clearly without merit namely, that it was error for the court to charge that plaintiff was not bound to look continuously to the south, and that the ordinance as to east and west bound vehicles was not applicable to a case where, as here, the vehicle ahead attempted to cross to the other side of the street. No doubt the rule of common law applicable to the situation was practically the same as that of the ordinance, namely, that the vehicle, in attempting to cross the street, was bound to yield the right of way to the following vehicle coming along it if there was not sufficient space for the crossing.

[2] As to the question whether or not the verdict upon the issue of contributory negligence was against the weight of the evidence, the material facts are the following: Plaintiff was driving an automobile truck northerly along the east side of Ocean avenue, nearing Avenue J; the former running north and south, and the latter east and west. The truck was 20 to 25 feet long and open; that is, without any covering over the driver's seat. Ocean avenue is very wide, having a park space in the center, through which run the two railroad tracks. The width of the roadway east of the parkway is 23 feet, and the park space extends 5 feet outside of the tracks. Plaintiff's auto was coming along about 5 feet from the easterly curb and with one side of the auto about 17 feet from the nearest rail of the tracks. When plaintiff was about 15 feet from—that is, south ofAvenue J, he looked back to his left and saw a north-bound car approaching about 200 feet south of Avenue J. He further testified that the car was then about 50 to 75 feet north of a crossover through the parked space, which crossover was really 375 feet south of Avenue J, so that the car must have been then some 285 feet south of plaintiff, or 300 feet south of Avenue J. The latter avenue is 80 feet wide. As plaintiff reached the corner of the intersection of the avenue he put out his left hand and turned to his left—the west—to cross the tracks, and as he was driving across he suddenly became aware that the car was almost upon him, coming at the same rate of speed at which he had seen it proceeding. He tried to turn out of its path, but could not, and his auto was struck by the car at about 5 feet back from his seat. His auto approached the point of his attempted turning at slow speed, so that he could have stopped in 2 feet.

Plaintiff did not look towards the car again, and paid no attention to it after he saw it the one time behind the auto. Plaintiff was conscious that it was his duty to give the car the right of way, if there was any question of precedence. When the plaintiff saw the car approaching, it was coming fast. He admitted that as he turned to cross he could have seen the car approaching some 20 or 25 feet away, had he just glanced in that direction "out of the corner of your eye." It does not appear that there was any other vehicle or object about to distract his attention. He testified that, as he first looked back and saw the car, he saw people standing on the easterly side of the grass plot near the crossing of Avenue J. It is manifest that the car, to stop to take those people aboard, would have to pass so that its front would be at the middle of Avenue J. It was very light at the time. It seems to me manifest that much the greater weight of the evidence indicated that the plaintiff was guilty of contributory negligence in attempting to turn his slow-moving vehicle, almost as long as a car, across that track without merely glancing to his left to see where the approaching car was, when only a little while before he had actually seen the car approaching at high speed, a distance of some 300 feet away; he having meanwhile slowly passed over at least 40 feet.

I think that he should not, under those circumstances, have attempted to cross the tracks ahead of the car, without taking any pains at all to make sure that it would not be upon him, and that the fact that he saw people standing at the near crossing of Avenue J did not warrant him in neglecting that precaution, upon the assumption that the car would stop to take them on. Those people might just as well, in the exercise of due care, have been pausing to allow the car to pass, just as he should have done, or even to allow the auto truck to pass. This case in this respect differs from the case of Power v. New York Central & Hudson River Railroad Co., 160 App. Div. 899, 144 N. Y. Supp. 1140, where this court unanimously affirmed a judginent for the plaintiff. That was the case of an accident at the Bronxville crossing, where two girls were killed. One of them was a stranger to the locality and knew nothing of the custom of the defendant to stop that train west of the foot crossing; while the other was a resident there, and knew well that custom. As to the former case this court held that the decedent, the stranger, was not entitled to cross without making sure that the train did stop before reaching the crossing. See Biggers v. New York Central & H. R. R. R. Co., 157 App. Div. 245, 141 N. Y. Supp. 827. In the case as to the other girl, upon proof that she knew that custom, the trial justice submitted to the jury as a question of fact for them to decide, whether it was negligent for her to attempt to cross without looking to see that the north-bound train, which she had seen at some distance approaching, actually stopped in its accustomed place, and, as above stated, this court affirmed that view of the matter.

The instant case seems to me rather to fall within the class or the doctrine of the Biggers Case. The respondent's brief cites and relies upon the cases of Knapp v. Barrett, 216 N. Y. 226, 110 N. E. 428, and Baker v. Close, 204 N. Y. 92, 97 N. E. 501, 38 L. R. A. (N. S.) 487, two cases which are much cited to us these days. The Knapp Case held distinctly that it was error to charge that plaintiff was not bound in law to look at all. The opinion said:

“If, for example, he looks as he starts to cross, and the way seems clear, he is not bound as a matter of law to look again.” 216 N. Y. at page 230, 110 N. E. at page 429.

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The test thus made is if "the way seems clear.” The point here is the way should not have seemed clear to plaintiff when he looked and saw the car approaching behind him at high speed. In the Baker

(182 N.Y.S.) Case the plaintiff testified that she did not see the auto at all when she looked (137 App. Div. 530, 121 N. Y. Supp. 1079), while in the instant case the plaintiff testified that he did see the car approaching at high speed. If the defendant at the trial had taken and maintained the stand that plaintiff's contributory negligence was established as a matter of law, I would advise that we hold that, and therefore dismiss the complaint; but, as above remarked, defendant's trial counsel took the position merely that that was a question of fact to be submitted to the jury, at least in the first instance.

I advise, therefore, that the judgment appealed from be reversed, and a new trial granted, with costs to abide the event. All concur.

(191 App. Div. 761)

SACCOMANNO et al. v. GRASSE RIVER R. CORPORATION et al. (Supreme Court, Appellate Division, Third Department. May 14, 1920.) Master and servant Om 403–Award for death of railroad employee not dis

turbed, in view of presumptions.

Where a railroad section foreman was killed by a car belonging to his employer, while standing on a side track in a lumber yard waiting for his men to arrive, so that he could direct them to work on an extension of the road, and no connection of deceased with interstate commerce was shown, an award of compensation under the Workmen's Compensation Law will not be disturbed, in view of section 21 thereof, relating to presumptions.

Cochrane and Henry T. Kellogg, JJ., dissenting.

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law by Rose Saccomanno to recover for the death of Frank Saccomanno, opposed by the Grasse River Railroad Corporation, employer, and the Lumber Mutual Casualty Company, insurance carrier. From an award by the State Industrial Commission in favor of claimant the employer and insurance carrier appeal. Award sustained.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

D. Theodore Kelly, of New York City, for appellants.

Charles D. Newton, Atty. Gen., and Bernard L. Shientag, of New York City (E. C. Aiken, Asst. Atty. Gen., of counsel), for State Industrial Commission.

KILEY, J. Frank Saccomanno, section foreman, in the employ of the appellant Grasse River Railroad Corporation, was instantly killed on October 22, 1918, at about 6:45 a. m. The conditions and circumstances under which he met his death are briefly as follows:

On the night of October 21, 1918, Saccomanno told his men under him that they would work in the lumber yard. On the morning of the 22d he left his home at 6:30 a. m. for his work. His day commenced at 7 a. m. At 6:45 he arrived at appellant's yard at his place

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of work, and was standing on a side track waiting for the men to arrive. As they came to where he was, he told them that he did not have any ties and was not going to work in the lumber yard that day, but that they should get their lunch before they left for work, and that they would go back to Silver Lake. A car came along at that junction, without warning, struck the foreman and killed him. It appears that the work planned for the 22d of October, the day of the accident, "was repairing ties under rails, for an extension of about two miles from a point known as Cranbury Lake.” The place to which the men were directed to return, because of absence of ties, was the “Silver Lake branch,” and that is where they were at work the day before the accident. The dependents of the deceased, claimants here, were awarded compensation. The employer and insurance carrier appeal, and ask that the award be set aside ar 1 claim dismissed, upon the ground that the decedent was engaged in interstate commerce at the time he met his death. If decedent was engaged in interstate commerce, his dependents would have a claim under the federal law. If engaged in intrastate commerce, they are right in the tribunal which they have selected for relief.

Some confusion arises here, because the Silver Lake branch, where the deceased was on his way to work, or at least the place for which he was about to start, is not identified as the "extension of about two miles from a point known as Cranbury Lake,” which is the terminal of the road. The work to be done, with reference to that extension, "was repairing ties under the rails,” not upon a road then existing; so that it can reasonably be inferred that the work intended before the order was countermanded was new construction. It appears that the employer is engaged in interstate and intrastate commerce. The evidence does not show that the deceased had any connection with interstate commerce, except such as can be inferred from his position as section foreman. The work which he started to do on the morning in question, viz. in the lumber yard, would not usually be such work as his men would be called upon to do, unless it was to load and carry away the ties. It does not appear for what the Silver Lake branch was used; neither does the record show its connection with the main line. It would seem that under section 21 of the Workmen's Compensation Law (Consol. Laws, c. 67) as to presumptions, we cannot disturb this award. In the matter of the claim of Guiseppe Malandrino v. Southern New York Power & Railway Corporation, 190 App. Div. 780, 180 N. Y. Supp. 735, decided at March, 1920, term, a similar question was before this court; the award was sustained. Shanks v. D., L. & W. R. Co., 214 N. Y. 413, 108 N. E. 644, Ann. Cas. 1916E, 467, Fish v. Rutland Railroad Co., 189 App. Div. 352, 178 N. Y. Supp. 439, and Matter of Plass v. C. N. E. Ry. Co., 226 N. Y. 449, 123 N. E. 852, are against the appellant.

The award should be sustained. All concur, except COCHRANE and HENRY T. KELLOGG, JJ., who dissent.

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