Miller v. Town of Fenton

Carpinello, J.

(dissenting). Even resolving all of the inconsistencies in the record in favor of plaintiffs and viewing the evidence in a light most favorable to them, I agree with Supreme Court’s finding that a superseding cause broke the chain of causation between the alleged omissions of defendant Delaware and Hudson Railroad Corporation (hereinafter defendant) and the accident — the negligence of plaintiff Cheryl L. Miller (hereinafter plaintiff) in failing to approach the uncontrolled railroad crossing with which she was fully familiar with suf*743ficient caution to avoid being in the train’s path. Accordingly, I respectfully dissent.

There is no dispute that passive warning signs were properly placed on Fuller Road a sufficient distance prior to the crossing (see, Railroad Law § 53-a). In any event, as conceded by the majority, plaintiff was familiar with this uncontrolled crossing and its surrounding area having crossed it thousands of times over the preceding 17-year period. As a motorist approaching an uncontrolled railroad crossing, plaintiff was obligated to “reduce [her] speed to a safe limit upon passing [the railroad approach warning] sign and to proceed cautiously and carefully with the vehicle under complete control” (Railroad Law § 53-a). In so doing, she was required to “employ [her] senses of hearing and sight to avoid danger” (Schrader v New York, Chicago & St. Louis R. R. Co., 254 NY 148, 150 [emphasis supplied]). If a railroad crossing is dangerous, because obstructed or otherwise, the care utilized by a motorist in traversing over it should be “ ‘commensurate with th[is] obvious risk’ ” (Delaney v Town of Orangetown, 44 AD2d 396, 400, affd 36 NY2d 770, quoting Crough v New York Cent. R. R. Co., 260 NY 227, 232). Moreover, “[i]f the railroad tracks at the crossing are not fully in view in both directions in the immediate approach to the crossing, due care requires a traveler to stop, look and listen before attempting to cross” (Delaney v Town of Orangetown, supra, at 400 [emphasis supplied]). While the absence of an audible warning “ ‘may tend to throw one off his [or her] guard * * * it does not justify the non-observance of ordinary care’ ” (Wadsworth v Delaware, Lackawanna & W. R. R. Co., 296 NY 206, 212, quoting Avery v New York, Ontario & W. Ry. Co., 205 NY 502, 506).

Here, plaintiff was admittedly familiar with the location and character of the railroad crossing having driven through it thousands of times over a 17-year period (see, Vasquez v Consolidated Rail Corp., 180 AD2d 247, 250, lvs denied 80 NY2d 762). Being aware that the crossing was uncontrolled, she knew of the possibility that a train might be approaching from the west and that her ability to see in that direction was obstructed by a bank. Moreover, evidence in the record, including photographs of Fuller Road and the railroad crossing, make clear that plaintiff had ample opportunity to observe the oncoming train 1,000 feet down the tracks after passing the bank. Although nothing prevented her from doing so, and despite having complete control over her vehicle prior to entering the intersection, plaintiff never slowed sufficiently to be certain that it was safe to proceed. By her own account, the instant *744she finally noticed the train her vehicle was already on or very close to the track, at which point she applied her brakes with some force. The risk of being hit and injured by an oncoming train is manifest. In short, my disagreement with the majority stems from my conclusion that plaintiff was obligated to insure that she could proceed over the crossing with complete safety before entering the intersection. Whether the train actually sounded its bell (a point disputed by plaintiff) is irrelevant.

The Court of Appeals has concluded, as a matter of law, that reckless conduct on the part of a plaintiff may constitute an unforeseeable superseding event sufficient to break the causal chain of a defendant’s alleged negligence (see, e.g., Olsen v Town of Richfield, 81 NY2d 1024; Howard v Poseidon Pools, 72 NY2d 972; Boltax v Joy Day Camp, 67 NY2d 617; see also, Butler v Marshall, 243 AD2d 971; Johnson v Harrington, 215 AD2d 857, lv denied 87 NY2d 802). Acts of a plaintiff which serve to absolve a defendant of liability for what otherwise would be actionable negligence must constitute a wanton disregard for the plaintiff’s own well-being (see, id.). On the strength of the principle espoused in these cases (see also, Smith v West Rochelle Travel Agency, 238 AD2d 398; de Pena v New York City Tr. Auth., 236 AD2d 209, lv denied 90 NY2d 808; Wright v New York City Tr. Auth., 221 AD2d 431, lv denied 88 NY2d 806), I conclude that, given her complete familiarity with the nature of the crossing and her failure to observe ordinary precautions in an obviously dangerous situation, plaintiff’s conduct must be viewed as sufficiently reckless to interrupt the causal connection between the negligence ascribed to defendant and her injuries. An uncontrolled railroad crossing, especially to one familiar with it, poses a patently obvious danger and the decision to cross without knowing for certain that it is safe to do so “is an action so obviously fraught with danger that, by its very nature, it evinces a wanton disregard for the actor’s own personal safety or well-being” (Wright v New York City Tr. Auth., supra, at 432).

Nor do I agree with the majority’s contention that an issue of fact remains with respect to the lack of an active warning device at the intersection. In this regard, I am unable to reconcile the majority’s holding in this case with this Court’s prior holding in Vasquez v Consolidated Rail Corp. (180 AD2d 247, supra). There it was held that a driver’s familiarity with an intersection superseded any negligence in failing to erect warning signs or devices. In affirming Supreme Court’s ruling, we noted that the presence or absence of such devices “could not, as a matter of law, be the proximate cause of the accident due *745to plaintiffs familiarity with the railroad crossing” (id., at 250). Here, plaintiffs conduct in approaching the intersection should have been the same whether she knew that a train was coming or whether she was simply aware of the possibility that a train was coming. I am unable to see how acting with less regard for one’s own personal safety under the latter situation as opposed to the former can be regarded as anything but wanton. Accordingly, I would affirm Supreme Court’s order.

Ordered that the order is reversed, on the law, with costs, and matter remitted to the Supreme Court for further consideration of the remaining grounds for defendants’ motion.