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App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

wards filled in by him, to cover unauthorized absences, with the intent to deceive his superior officers and to falsify the record ;"

3. “That he did on several occasions forward to the inspector of his district reports not countersigned by himself, as required by Rule 5, Paragraph G, of the Rules and Regulations of the Department, but signed by some other person ;” and

4. “That on May 9th, 1902, he made a false statement to Deputy Commissioner Ebstein, with intent to deceive."

It is earnestly insisted in behalf of the relator that upon all of the evidence in the record before us there was such a preponderance of proof against the existence of the facts thus found that the verdict of a jury affirming the existence thereof, rendered in an action in the Supreme Conrt triable by a jury, would be set aside by the court as against the weight of evidence. (See Code Civ. Proc. $ 2140.)

So far as the third and fourth findings are concerned, I am satisfied that this view is correct. In regard to the third alleged offense, the proof shows that on four occasions district reports were forwarded to the inspector bearing the signature of the relator, not written by himself, but by some one who assumed to countersign them in his behalf. The relator's own testimony (and there is no other evidence on the subject) shows that these reports were countersigned without his authority or knowledge, having been brought to his house at a time when he was either ill or asleep, and signed by his wife or some other member of his household who was unwilling to disturb him. The occurrence seems to have been wholly accidental, involv. ing no intention on the part of the relator to deceive his superiors or anyone else, and it does not seem to me that a conviction of neglect of duty can possibly be sustained upon the evidence herein relating to this matter, without manifest injustice. The facts proved in regard to these district reports do not establish a conscious violation of any rule on the part of the relator. . (See People ex rel. Hogan v. French, 119 N. Y. 496, 497.) As to the fourth alleged offense, to the effect that the relator made a false statement to Deputy Commissioner Ebstein with intent to deceive, the charge was that in response to a question by the deputy commissioner as to where he had been during the morning of May 9, 1902, Captain Reardon replied, “I was here in the station-house all morning,"

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SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

or words to that effect, which statement was false and intended to deceive his superior officer. Four witnesses were called in reference to this charge, Deputy Commissioner Ebstein, Sergeant Kohlman, Inspector McLaughlin and Captain Reardon himself. All the witnesses, except the deputy commissioner, testified that what the captain said was that he had been in and around or about the station house all the morning; and although on his direct examination the deputy commissioner testified that the captain's statement was that he was in the station house, on cross-examination he qualified the statement by saying, “He said he had been about the station house." The weight of evidence is clearly to the effect that the captain's declaration was that he had been in the station house or the neighborhood, and there is absolutely no proof that this statement was false. As matter of fact the blotter showed upon the arrival of the deputy commissioner that the captain was on patrol, and the captain's own testimony shows that at this time he was on patrol in the vicinity of the station. In view of the existence of this entry, known to the relator, it is incredible that his answer to the deputy in regard to where he had been during the morning was made with any deceptive intent.

A more difficult question than any that has yet been considered arises in reference to the proof in support of the first and second alleged offenses, to which most of the testimony in the record relates. Paragraph E of rule 5 of the rules and regulations of the police department makes it the duty of the captain, before leaving the station house at any time, to enter in the blotter in his own handwriting the precise time and purpose of leaving, and immediately upon returning to enter likewise in the blotter the time of his return. Testimony was given by Sergeant Kohlman, who was attached to the relator's precinct, to the effect that he left blanks in the blotter, by the express direction of the relator, to the end that entries might subsequently be made therein by the captain in respect to his going home or assuming command. Further testimony was given on the same subject by Sergeant Patrick H. Bowes, who was attached to the same precinct, and who stated that he left blank spaces in the blotter in accordance with instructions from Captain Reardon. I am not prepared to say that the denial of the relator, and the other testimony on the same subject, constitutes such a preApp. Div.] SECOND DEPARTMENT, JULY TERM, 1903. ponderance of proof against the existence of the facts to which these witnesses in support of the charge testified so specifically, that the verdict of a jury to the same effect would be set aside as against the evidence.

Neither does it seem to me possible to hold that the second finding is against the weight of evidence. Sergeant Kohlman testifies not only as to leaving blank spaces in the blotter by direction of Captain Reardon, but that he directed the sergeant to enter in the blotter statements to the effect that he was in command or was calling the roll, when as matter of fact he was not discharging either duty. The witness does not appear to have been under the influence of any bias or interest, and I do not perceive how it can be held as matter of law that his evidence is outweighed by the testimony of the relator to the contrary.

We have here, then, a case where a captain has been dismissed from the police force upon four findings of fact, two of which are plainly against the weight of evidence, and two of which must be regarded as sufficiently established by the proof. In fixing the punishment the police commissioner obviously proceeded on the erroneous assumption that all four charges were made out. The accused was an officer who had been a member of the police force for thirty-four years, during which period he had been reprimanded but once, and fined altogether but six days' pay. The deputy police commissioner upon the hearing expressly conceded his good conduct in the management of his precinct. “There is no charge,” he said,

. " that the precinct has not been conducted all right by Captain Reardon. We admit that it has been conducted all right.” In view of the relator's long service and good record, it may very well be that if the police commissioner had based his judgment only upon the first two findings, and had given due weight to the fact that the charge of causing a false entry to be made in the blotter rested upon the oath of only one witness, against the denial of Captain Reardon, he would have felt that the ends of justice would have been satisfied by a much lighter punishment than that which he saw fit to inflict. Certainly, this is the impression made upon the judicial mind by a careful examination of the record in this case. Under the circumstances, the proper course to be pursued is to reverse the determination of the police commissioner and direct a new trial before him or

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

one of his deputies of the charges, and only the charges, referred to in the first and second findings of fact.

GOODRICH, P. J., WOODWARD, HIRSCHBERG and JENKS, JJ., concurred.

Determination reversed, without costs, and new trial directed before the police commissioner or one of his deputies, upon the charges, and only the charges, referred to in the first and second findings of fact.

SUSAN WESTERVELT, as Administratrix, etc., of JAMES WESTERVELT, Deceased, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

Negligence-death of a pedestrian from a collision with a train at a crossing — a failure to give a signal of the approach of the train requires the submission to the jury of the question as to the defendant's negligence — what proof fails to establish the absence of contributory negligence on the pedestrian's part.

In an action brought to recover damages resulting from the death of the plaintiff's intestate, who was run over by one of the defendant's trains at a railroad crossing in the city of Yonkers, two witnesses, neither of whom appeared to bear any relation to the parties, testified that they did not hear any whistle or bell as the train approached the crossing. One of such witnesses testified that he was standing in a place where he could have heard the whistle or the bell if it had been blown or rung. The other witness was only three or four hundred feet from the crossing on which the accident occurred. None of the witnesses sworn upon the trial testified that the bell was rung or the whistle sounded.

Held, that the evidence was sufficient to authorize the submission of the case to the jury upon the question whether the defendant was negligent in failing to give any signal of the approach of the train.

It appeared that there were four tracks at the crossing and that the defendant maintained gates on each side of the crossing which were ordinarily kept down on Sundays; that the accident occurred on Sunday morning; that the intestate bent down to pass under the gates, and when he reached the second track the flagman stationed at the crossing warned him not to proceed. Notwithstanding such warning, he continued on his way and crossed the third track and stepped upon the fourth track when he was struck by a train approaching on that track. The testimony showed that after the intestate had passed within the gates, he could have seen the train which struck him for a distance of a quarter of a mile, if he had looked in that direction.

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

It also appeared that some cars were standing upon the track in a position where

they would have hidden the approaching train from view at some points in the

intestate's progress across the crossing. Held, that the evidence was not sufficient to sustain a finding that the intestate

had been free from contributory negligence.

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APPEAL by the plaintiff, Susan Westervelt, as administratrix, etc., of James Westervelt, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 7th day of March, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term after a verdict rendered in favor of the plaintiff for $5,000, with notice of an intention to bring up for review an order entered in said clerk's office on the 7th day of March, 1903, setting aside the verdict in favor of the plaintiff and dismissing the complaint.

Arthur J. Burns, for the appellant.

Charles C. Paulding, for the respondent. WILLARD BARTLETT, J.:

The plaintiff's husband, James Westervelt, while endeavoring to cross defendant's railroad at Yonkers, on the morning of Sunday, May 4, 1902, was struck by one of the defendant's trains running south, and almost instantly killed. This action was brought under the statute to recover damages for wrongfully causing his death. At the close of the evidence for the plaintiff a motion to dismiss the complaint was denied and the defendant rested without putting in any proof. The motion to dismiss was then renewed, and a motion was also made to direct a verdict for the defendant. The decision of these motions was reserved until after the verdict, and the jury found for the plaintiff, awarding her damages in the sum of $5,000. The learned trial judge subsequently set aside the verdict, stating that he did so not on the facts but solely on the ground that the defendant was entitled to have a verdict rendered in its favor at the close of the evidence. There is a short opinion in the record, but it does not disclose what particular reasons influenced the court in thus setting aside the verdict.

Upon the present appeal the learned counsel for the respondent argues in support of the action of the court below that there was

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