Opinion
January 20, 1971
Appeal from a judgment of the Supreme Court, entered June 1, 1970 in Albany County, upon a verdict rendered at a Trial Term in favor of plaintiff in the amount of $115,000. On October 2, 1963, Patrick La Rocco, a mechanic, was killed when his automobile was struck by appellant's Empire State Express at a private crossing while he was on his way to a customer's house to repair an automobile. Appellant makes no claim that the verdict was against the weight of the evidence, but contends only that the trial court's charge contained reversible error, and that the verdict was excessive. Appellant argues that the trial court should not have charged that negligence could be predicated on improper maintenance of the crossing, since there was no evidence in the record which could have supported such a finding. This statement, when viewed in the context of the entire charge and the evidence, does not constitute reversible error. There was testimony which could permit the jury to find that the decedent, approaching the railroad crossing from the east, had no view to the south until his car was on the tracks, since the embankment 7 to 19 feet in height, extending southward from the crossing, caused his view in that direction to be obstructed. It is true that the mere presence of an obstruction, which hinders the view between a vehicle approaching a crossing and an oncoming train, is not a sufficient basis, per se, for a finding of negligence ( Cordell v. New York Cent. Hudson Riv. R.R. Co., 70 N.Y. 119). However, the presence of the obstruction near the crossing raised a question of maintenance of the area which could be considered by the jury "as a circumstance requiring greater caution in running the train" ( Cordell v. New York Cent. H.R.R.R., supra, p. 124). The holding in Cordell ( supra) was cited in Bailey v. Baltimore Ohio R.R. Co. ( 227 F.2d 344, 346): "The existence of the obstruction here is relevant only in so far as it affects the railroad's duty of care in giving timely warning of a train's approach and as it affects plaintiffs' duty of care." Thus the instruction that the jury could find negligence in the "maintenance of the crossing" was not improper since the jury might consider the existence of the embankment as a factor to be considered with other circumstances, i.e., speed of the train and the warning given as it approached the crossing. In the evaluation of attacked isolated portions of a charge, the Court of Appeals has stated: "Although some portion of a charge, for the want of some qualification or explanation, may be subject to criticism, it is to be construed in the light of other portions of the charge so far as it may be, and if the charge as a whole presents the questions fully and fairly to the jury so as not to mislead them, exceptions to detached portions of it will not be effectual for the support of error. ( Sperry v. Miller, 16 N.Y. 412; Caldwell v. N.J.S. Co., 47 id. 282; Losee v. Buchanan, 51 id. 492.)" ( Hickenbottom v. Delaware, Lackawanna Western R.R. Co., 122 N.Y. 91, 100.) Following the alleged error and before submitting the case to the jury, the court gave an adequate and correct charge of the applicable law to which appellant's attorney stated he had no objection. The court instructed the jury: "A railroad, because it must adhere to a schedule and because its trains are not as easily controlled as are automobiles, has the paramount right of way at a grade crossing, and the engineer of a train approaching the crossing has the right to assume that motorists using the crossing will exercise reasonable care for their own safety. The railroad is, however, under a duty to give warning of the approach of a train to a traveler on the highway. The warning given must be timely and must be adequate in nature. In determining whether under all of the circumstances existing at the time of collision, adequate and timely warning was given, you will consider the speed of the train as it approached the crossing; the grade of the highway and of the railroad roadbed as they came together; the condition of the weather; what, if any, obstruction there was to view of the train by a motorist on the highway as he approached the crossing, and any other circumstances affecting the timeliness and adequacy of the warning that you find then existed. If you find that no warning was given or that under the circumstances existing at the crossing at the time of the collision, the warning given was not adequate or was not timely, your finding will be that defendant railroad was negligent." (Emphasis supplied.) Shortly thereafter in response to a request by appellant's attorney, the court stated: "You may not base any negligence upon the absence of any gates, lights or a watchman at the crossing." In view of these instructions, the alleged error could not have been of sufficient gravity to warrant a new trial. Since the last word on the subject before the jury retired for deliberation effectively cured any alleged error, the verdict of the jury should be affirmed. (See Berckhemer v. Empire Carrying Corp., 172 App. Div. 866, affd. 224 N.Y. 725.) Appellant's contention that the verdict was excessive is also without merit. At the time of his death, the deceased, 46 years old, left a wife and two infant sons, aged two and a half and one and a half. He earned about $75 per week as a mechanic, and had a life expectancy of 26.3 years. There was testimony that, in addition to his work as a mechanic, decedent did additional work, consisting of buying and selling cars which he repaired, and operating a bulldozer as well as a jeep snowplow for profit. His regular job together with these other endeavors frequently kept decedent busy from early morning until late at night. Taking into consideration all of these factors, we cannot say the verdict was excessive. As Mr. Justice REYNOLDS stated recently in Sandor v. Katz ( 27 A.D.2d 766): "The issue of damages is factual and thus is essentially a determination for the jury. It is only where it can be said that a verdict is clearly excessive that an interference with it and the trial court's considered evaluation thereof is warranted. That another trier of the facts might well have arrived at a lower amount is not the test ( Colby v. Drew, 15 A.D.2d 846)". Judgment affirmed, with costs. Greenblott and Cooke, JJ., concur; Herlihy, P.J., concurs in the following memorandum, in which Greenblott and Cooke, JJ., concur: There was a close and sharp issue of fact presented to the jury and the charge of the court, when read in context and in its entirety, was fair to both parties, including the requests to charge which were granted ( Byrne v. New York Cent. Hudson Riv. R.R. Co., 104 N.Y. 362, 368; Fischer v. New York Cent. R.R. Co., 273 App. Div. 135, mot. for lv. to app. den. 298 N.Y. 933). Under the circumstances, there being no errors of law and the verdict not being against the weight of the evidence, the judgment should be affirmed. Sweeney, J., dissents, and votes to reverse and order a new trial, in the following memorandum, in which Staley, Jr., J., concurs: I cannot agree with the majority. A reading of the charge clearly establishes that the court repeatedly instructed the jury that it might predicate liability on negligent maintenance. It was first mentioned early in the charge in the following language: "Now that negligence may be of two kinds. It may be alleged negligence in the maintenance and operation of the road at the particular crossing involved." Towards the end of the charge it was again expressed as follows: "If you find that there was negligence on the part of the defendant either in its maintenance of the crossing or in the operation of its train * * * you may find for the plaintiff as I have indicated to you". An examination of the record reveals no testimony as to negligent maintenance of this crossing. There was testimony by experts as to the physical condition of the crossing and as to certain distances at which the engineer could first see the crossing. There is nothing, however, from which a jury could reasonably infer that these conditions constituted negligent construction or maintenance. The majority justifies the charge that the jury could find negligence in the maintenance of the crossing largely on the ground that the jury might consider the existence of the embankment as a factor along with the other circumstances of the speed of the train and whether or not adequate warning was given. I do not disagree with the general principle that a jury may consider an obstruction along with other circumstances on the question of adequate warning of the approach of the train. ( Cordell v. New York Cent. H.R.R.R. Co., 70 N.Y. 119, 123; 6 Warren's Negligence, § 6.10, subd. [o], p. 230.) But such is not the situation here. The court stated that negligence could be based on maintenance. For such a charge to be proper the record must contain some evidence of negligent maintenance on the part of the railroad. The majority agrees that negligence may not be based on the existence of the embankment alone and, yet, overlooks the fact that the charge fails to explain under what circumstances the embankment may be considered in establishing negligence. This, in my opinion, is vague and misleading and constituted error. This error, coupled with the photographs of the scene depicting the obstruction, magnified the wrong. Neither can I agree with the majority's conclusion that the alleged error was not of sufficient gravity to warrant a new trial, since the last word on the subject to the jury cured any error. In my opinion, the erroneous charge presented the jury with a theory of negligence upon which it could base its verdict when the record is devoid of any substantiating proof of such negligence. The judgment should be reversed and a new trial ordered.