Jessie Burgess, by Her Guardian ad Litem, Margaret Burgess, Appellant, v. The Long Island Railroad Company, Respondent

Jessie Burgess, by Her Guardian ad Litem, Margaret Burgess, Appellant, v. The Long Island Railroad Company, Respondent. Second Department, November 27, 1912. Railroad — negligence — injury to child trespassing upon railroad bridge — duty of engineer to trespasser — when no negligence in delaying attempt to stop train. Where the plaintiff, a girl seven years of age, was a trespasser upon a railroad bridge and was lying between the ties, the duty of the defendant, a railroad company, to stop an oncoming train did not arise until the engineer discovered the plaintiff’s presence and peril. The fact that the engineer when 600 feet distant made out something blue upon the tracks which he at first took to be a workman was not such indication of the plaintiff’s peril as required him then to apply the brakes, he having sounded the alarm whistle. Where after the train, a fast express, had proceeded 400 feet further without the plaintiff heeding the signal, the engineer put on the emergency brakes, and sanded the rails in a effort to stop, defendant cannot be charged with affirmative negligence toward the plaintiff, who was a trespasser. Under the law of this State a locomotive engineer owes to passengers on the train and to persons lawfully upon the track the duty of keeping a lookout in order to prevent injury to them, but he owes no such duty to a trespasser. Appeal by the plaintiff, Jessie Burgess, by her guardian ad litem, from an order of the Supreme Court, made at the Queens County Trial Term, and entered in the office of the clerk of the county of Queens on the 11th day of May, 1912, granting the defendant’s motion to set aside the verdict of a jury in favor of the plaintiff for $2,000 and for a new trial made upon the minutes. Nicholas W. Hacker, for the appellant. Matthew J. Keany [Joseph F. Keany with him on the brief], for the respondent. Order unanimously affirmed, with costs, on the opinion of Mr. Justice Putnam at Trial Term. Present — Jenks, P. J., Hirschberg, Burr, Thomas and Carr. JJ'. [MAJORITY — Putnam, J.:] The following is the opinion delivered at Trial Term:. Putnam, J.: Two little girls about seven years old, walking along a railway embankment, strolled upon the defendant’s tracks and made their way to the steel bridge which spans Jamaica avenue. This bridge is about 30 feet in length, carrying the double tracks of the Rockaway division. The girls were lying together upon the track, down between the ties, where they were throwing cinders upon the street cars passing-below. The,-fast express coming from the north, about two minutes late, was making up time on a slightly descending grade. The engineer testified that when about 600 feet distant he made out something blue on the track, which he first took to -be a workman engaged upon the bridge, whereupon he sounded alarm whistles, but did not then apply the brakes. Plaintiff maintains that a first view of this object so low upon the track, being upon a bridge, should have indicated peril, and have required the train at once to stop. But defendant’s duty towards the plaintiff arose when and not until its engineer discovered plaintiff’s presence and peril. The sight of the small object lying on the track was not such an indication (Murch v. Western New York, etc., R. R. Co., 78 Hun, 601 See, also, Foley v. N. Y. C. & H. R. R. R. Co., Id. 218.) When the engineer saw he had no response from his continued alarm whistles — being about 200' feet from the bridge — he put on the emergency brakes and sanded the rails in the effort to stop. The children did hot heed the train until it was almost upon them and the plaintiff was struck and thrown upon- the embankment. Two witnesses standing below, at the comer of Union place and Jamaica avenue, thought, that when this train first whistled it was more than 600 feet north of the bridge. Slight reliance, however, can be placed upon such fugitive impressions of the approach of an oncoming train. There is little variance as to the space to stop such a train under the air brakes. It did not come to a standstill until a flagman had gone back, but the reduction, after the emergency brakes, sub stantially agreed with the estimate of plaintiff’s expert, that such a train could be stopped in a distance of between 500 and 530 feet. Hence there was no conflict between the engineer’s testimony of what he did, and the expert called to impeach his narrative, as often arises. (Thayer v. N. Y. Central & H. R. R. R. Co., 117 App. Div. 318; Feldman v. N. Y. Central & H. R. R. R. Co., 142 id. 339.) Neither was there any substantial discrepancy between the engineer’s testimony in court and what he had said before the coroner. Both tell of the succession of preventive efforts as the peril became manifest: Naturally the account brought out on the trial was more detailed. Upon the trial the engineer first stated the distance of 200 feet from the bridge as the point where the brakes were put on. An object seen on a short trestle or bridge over a street did not itself make a dangerous place, considering how few steps would take the person, even a child, to the abutment, and upon the open side path along the embankment. It is quite different from overtaking a couple, running for their lives in plain view along a bridge 310 feet in length, as in Feldman v. N. Y. Central & H. R. R. R. Co. (142 App. Div. 339). Was the few seconds’ delay before putting on the brakes such a conscious disregard of the plaintiff’s situation and its perils as amounted to affirmative negligence toward a trespasser ? By New York law the engineer owes to the passengers on the train, and to persons lawfully on the track, to keep a lookout in order to prevent injury to them; but he owes no such duty to a trespasser. The question is not what the engineer might have seen by an earlier or closer scrutiny, but what he was called upon to do after the situation of plaintiff’s peril was manifested to him. (New York, N. H. & H. R. R. Co. v. Kelly, 93 Fed. Rep. 745; Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164; Buckley v. N. Y. Central & H. R. R. R. Co., 142 App. Div. 10. See, also, White v. N. Y. C. & H. R. R. R. Co., 20 N. Y. Supp. 6, where Cullen, J., held that a plaintiff was bound to show that the engineer saw the position of the deceased and made no effort to avoid injury.) Plaintiff, however, cites decisions in other jurisdictions which hold the engineer bound to keep a lookout for track trespassers. This has not been the law of New York, nor in the Federal courts. (33 Cyc. 790, note 73. See 2 Thomp. Neg. [2d ed.] §§ 1734, 1735.) It is against the analogies of liability to trespassers generally. (Weitzmann v. Barber Asphalt Co., 190 N. Y. 452.). The Demand ease (Demand v. N. Y. C. & H. R. R. R. Co., 198 N. Y. 102) does not lay down a different rule. It points out that if the engineer was guilty of omission of reasonable care, after having seen the man and horse 1,300 feet off, the- jury could have rendered a verdict for plaintiff, although the intestate was primarily a trespasser, as his contributory 'negligence was a question of fact, and the primary trespass was not a proximate cause, as was ruled in Rider v. Syracuse R. T. R. Co. (171 N. Y. 139). In the present case the efforts to stop the train are proven to have been made when the danger was realized, and the defendant is not to be blamed because it was not successful in bringing the train to a stop before the accident. It follows that the verdict is against the weight of evidence." It is, therefore, set aside and a new trial ordered.