Miller v. Town of Fenton , 669 N.Y.S.2d 391 ( 1998 )

Yesawich Jr., J.

Appeal from an order of the Supreme Court (Rose, J.), entered November 22, 1996 in Broome County, which, inter alia, granted defendants’ motions for summary judgment dismissing the complaint.

Plaintiff Cheryl L. Miller (hereinafter plaintiff) was injured when her van was struck by a train at the Fuller Road railroad crossing in the Town of Fenton, Broome County. The tracks were owned by defendant Delaware and Hudson Railroad Corporation (hereinafter defendant); the crossing was not controlled by signal lights or gates. Prior to the collision, plaintiff, who was familiar with the crossing, having traversed it on a daily basis for over 17 years, had been driving north on Fuller Road. Although it was not snowing at the time, the road was coated with snow that had fallen the night before and, according to plaintiff, was “slippery”. As plaintiff approached the tracks, having slowed to approximately 10 miles per hour, she heard no train bell, horn or whistle. After passing an embankment that blocked her view of the tracks to the left (west) — at which point she was less than 25 or 30 feet from the tracks— plaintiff looked to the right, then to the left, whereupon she saw the oncoming train and applied the brakes more forcefully. As she did so, the van slid into the path of the train.

Plaintiff, and her husband derivatively, commenced this action against defendant and defendant Town of Fenton alleging, inter alia, that the former was negligent in failing to properly warn drivers of the train’s approach by sounding an appropriate audible warning and in not providing active warning signals at the crossing. Supreme Court, finding that plaintiffs conduct was the sole or superseding cause of the accident, granted defendant’s motion for summary judgment, prompting this appeal by plaintiffs.^*

A negligent defendant may be relieved of liability if the plaintiffs own conduct, or that of a third party, has intervened to “break[ ] the chain of causal connection” between that defendant’s breach of duty and the ensuing injury (Mesick v State of New York, 118 AD2d 214, 218, lv denied 68 NY2d 611). To constitute such an intervening, or superseding, cause, the conduct in question must be so reckless or unforeseeable that it is unreasonable to hold the defendant responsible for the resulting damages (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315; Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 952, mod on other grounds 46 NY2d 770).

Considering all of the relevant proof — including testimony to the effect that, had the van not slid on the snow, it would have come to a stop before reaching the tracks, and plaintiffs averment that she had not had any difficulty controlling the vehicle prior to that time — we cannot say, as a matter of law, that plaintiffs actions were so culpable that they must be deemed a superseding cause of the accident (see, Mesick v State of New York, supra, at 218). While it may well constitute negligence (see, Railroad Law § 53-a), the mere failure to approach a railroad crossing with sufficient caution to insure that one has enough time to stop if necessary is not, without more, such a deliberately reckless act, evincing a “wanton disregard for the actor’s own personal safety or well-being” (Wright v New York City Tr. Auth., 221 AD2d 431, 432, lv denied 88 NY2d 806), as to compel the conclusion that it is the only legal cause of an ensuing collision.

Moreover, if the train was completely or partially obscured from plaintiffs view as she approached the tracks — a finding for which there is ample support in the record (see, Hessner v Delaware & Hudson Ry. Co., 46 AD2d 463, 465, affd 38 NY2d 906; cf., Horton v New York Cent. R. R. Co., 237 NY 38, 43) — it would not be unreasonable to conclude that a train-vehicle collision was a foreseeable and natural result of defendant’s allegedly negligent failure to provide audible or visible signals designed to alert drivers to the presence of a train. Indeed, it can hardly be disputed that one of the “prime hazards” that create the need for such warnings is the possibility that, absent them, a driver might proceed onto the tracks without exercising due care to ascertain that they are clear. The fact that Miller may have been negligent, or even reckless, does not insulate defendant from liability, for her intervening conduct “may not serve as a superseding cause, and relieve [defendant] of responsibility, where the risk of the intervening act occurring is the very same risk which renders [defendant] negligent” (Derdiarian v Felix Contr. Co., supra, at 316; see, Dupell v Levesque, 198 AD2d 712, 713; Quiquin v Fitzgerald, 146 AD2d 894, 897). Accordingly, defendant was not entitled to summary judgment on this ground.

Defendant also contends — and Supreme Court found — that in view of plaintiffs admitted familiarity with the crossing, the lack of an active warning device (a flashing signal or gate) could not have been a proximate cause of the accident. In our view, questions of fact preclude summary judgment on this issue. Although an individual’s knowledge of the terrain can preclude recovery for the negligent failure to post a warning sign (see, Boucher v Town of Candor, 234 AD2d 669, 671; Vasquez v Consolidated Rail Corp., 180 AD2d 247, 250, lvs denied 80 NY2d 762), “the absence of a warning sign cannot be excluded as a cause unless the plaintiffs awareness of the condition would have led to the same course of conduct as if the sign had been present” (Vasquez v Consolidated Rail Corp., supra, at 250; see, Koester v State of New York, 90 AD2d 357, 362). In this instance, it cannot be said, as a matter of law, that plaintiffs actions would have been the same if there was a flashing light or automatic gate, triggered by an oncoming train, in operation when she approached the crossing (see, Wood v State of New York, 112 AD2d 612, 615).

Cardona, P. J., Mercure and Peters, JJ., concur.

* The Town also sought, and obtained, summary judgment, but plaintiffs have since entered into an agreement settling and discontinuing their claims against it; consequently, we are not called upon to evaluate that aspect of Supreme Court’s order.