Horton v. New York Central Railroad

Hinman, J. (dissenting):

I cannot agree that there was error in the charge of the learned trial justice. The jury was not misinformed as to the law with reference to the duty of the plaintiffs’ intestate in approaching the crossing in question. It seems to me that the law was made very plain to the jury and that the verdict must stand.

In instructing the jury with reference to the duty of the plaintiffs’ intestate as bearing upon the question of his contributory negligence, the trial justice said:

“Now the law did not require from him an unreasonable thing. It didn’t require him to look when he couldn’t see. It didn’t require him to listen when he couldn’t hear. But when he came to a place approaching this crossing where he could see, then he should look. And when he came to this crossing at a place where he could hear, then he should listen. And if he failed to look, or he failed to listen, when he should have looked and when he should have listened. *433then he did not exercise that degree of ordinary care and prudence required of him under the particular circumstances.
“ Now there is another rule which controlled and regulated the conduct of Mr: Horton in approaching this crossing on this day in question. Located 300 feet from the crossing on the right-hand side of the road was a sign which was placed there under and pursuant to section 53a of the Railroad Law of the State of New York. And the Legislature in its wisdom has laid down this rule of statutory law which governed the conduct of Mr. Horton in approaching this crossing on the day in question: 1 It shall be the duty of the driver of any vehicle using such highway and crossing to reduce speed to a safe limit upon passing such sign, and to proceed cautiously and carefully with the vehicle under complete control.’
“ That duty was incumbent upon Mr. Horton. And if in the failure to perform that duty, his failure to perform it contributed to this accident, causing his death, then as a matter of law he was guilty of contributory negligence, and the plaintiffs in this action are not entitled to recover.
The law in this State does not require a person approaching and passing over a railroad grade crossing to stop, look and listen, unless you find as a fact that Mr. Horton in this particular case, under the particular circumstances and in the exercise of ordinary care in the movement of his automobile on this day in question, should have stopped, looked and listened for the approach of this train, or unless you find as a fact that in order for Mr. Horton to proceed cautiously and carefully with his automobile under complete control that it was necessary for him to stop as well as look and listen in approaching and going over this crossing on the day in question.”

It is to be noted that the counsel for the defendant made no specific requests to charge in relation to the duty of the plaintiffs’ intestate and counsel simply excepted to certain portions of the charge as follows: “ Mr. Whalen: I wish, if your Honor please, to except to the submission as a question of fact of the issue whether the plaintiffs’ intestate on the occasion in question was guilty of contributory negligence. The Court: Yes. Mr. Whalen: Also to so much of your charge as states that Mr. Horton was bound to approach the crossing with the ordinary degree of care. The Court: Ordinary degree of care under all the attendant circumstances. Mr. Whalen: Yes; to the use of the word 1 ordinary ’ in view of the peculiar statute. The Court: Yes. Mr. Whalen: Finally we except to the statement that under the law of the State of New York it was not incumbent upon Mr. Horton necessarily to stop before *434he reached the crossing. The Court: I left that as a question of fact. Mr. Whalen: I understand.”

It seems to me that it is for the jury to say whether under the circumstances of the particular case the plaintiffs’ intestate did or did not comply with the provisions of the statute in question and that the trial court was justified in refusing to charge as a matter of law that it was the duty of the plaintiffs’ intestate under this statute to stop before passing over the crossing in question.

Mr. Justice Kiley holds that the statute in question provides for a greater degree of care in approaching grade crossings than has heretofore obtained,” and that “ the jury should have been instructed that more than ordinary care was required.” The statute in question does not deal with degrees of care or general standards of care but provides specifically what acts must be done and what precautions must be taken by the driver of a vehicle approaching a railroad grade crossing. It seems rather idle to speculate as to what acts and vigilance would constitute a high degree of care and what acts and vigilance would constitute only ordinary care. Such speculation is not helpful. (Moshier v. City of New York, 190 App. Div. 111, 117.) In charging generally that the driver of a vehicle must exercise more than ordinary care or a high degree of care in approaching a crossing, it cannot be said that such an instruction would convey to the minds of the jury those acts and those acts only which are provided for in the statute.

Mr. Justice Kilby states that the trial court in submitting this case to the jury read the provisions of the statute and specifically limited the care required of plaintiffs’ intestate to the ‘ exercise of. ordinary care.’ ” It does not seem to me that the trial court specifically limited the care required to ordinary care.” He said to the jury that the general standard of care to be exercised by a person approaching a railroad crossing is that of ordinary care in the circumstances of this particular case, but that the statute must álso be complied with in order to be free from contributory negligence. That is a correct statement of the rule and there was no error in the charge.

I think the judgment and order should be affirmed and, therefore, I dissent.

Cochrane, P. J., concurs.

Judgment and order reversed and new trial granted, with costs to the appellant to abide the event.