Trent v. International Railway Co. , 1936 N.Y. App. Div. LEXIS 5022 ( 1936 )

Lewis, J.

The defendant appeals from four judgments awarding to the plaintiffs damages for personal injuries sustained when an automobile in which they were riding was struck by one of defendant’s trolley cars.

The accident occurred in Buffalo at the Elmwood avenue entrance to the New York State College for Teachers where a concrete driveway, leading from the street to the school buildings, passes over defendant’s trolley tracks. At that point defendant’s tracks run parallel to and about twelve feet west of the paved portion of the street but within the highway proper. On the night of the accident the infant plaintiff, Eugenia Trent, with her escort, Nathan Platt — both of whom were then members of the junior class -— had. arranged to attend a school dance to be held in one of the State buildings. Her father, the plaintiff Eugene Trent, had offered to furnish conveyance and had permitted the daughter to drive his automobile accompanied by himself, the other two plaintiffs and Platt. Proceeding southerly along Elmwood avenue to the school entrance described above, the car turned westerly into the concrete driveway and, according to plaintiffs’ evidence, was brought to a complete stop east of defendant’s north-bound track. It is plaintiffs’ claim that no trolley car was then observed approaching from either direction; that thereupon the Trent automobile moved forward and, as it reached a position across the nearer track, was struck by a north-bound car with resulting injuries to the four plaintiffs for which a jury has awarded a verdict in" each instance.

The defendant has argued before us that plaintiffs’ injuries resulted solely from their contributory negligence and not from any failure of care by its motorman. From our examination- of the record we conclude that the proof in that regard presented a question of fact which the jury has determined in accord with the weight of evidence.

However, we are not in agreement as to the propriety of the following portion of the court’s charge which the defendant challenges as wrong in law and prejudicial to its rights: “ On the question of the duty of the operator of the street car, he was bound under the statute at this point to use extreme care.”

The statute to which the trial justice referred and which he read to the jury provides: “ 12. The driver of any vehicle or street surface car upon approaching a bridge or in passing a public hospital, fire house or a school, shall proceed with extreme care and with vehicle or street surface car under control, provided State or municipal authorities have legible and visible signs posted to warn drivers of their approach to a bridge, fire house, public hospital or school building.” (Vehicle & Traffic Law, § 81, subd. 12.)

The defendant asserts that the Legislature did not intend by this enactment to enforce the duty of extreme care except to avoid a contemplated peril to a certain class of persons under circumstances which, it is claimed, were not proved in this case. It is said that in the absence of proof that the school in front of which the accident occurred was in session at the time, the statute did not require of the motorman the exercise of “extreme care” as defendant’s trolley car approached the point where the school driveway crossed its tracks. It has also been suggested that the statute does not afford protection to the public in general but only to a particular class, viz., those of school age who enter and leave public schools in large numbers. We believe that to thus limit the protective purpose of this statute is too narrow a construction.

The statute indicates a purpose by the Legislature to reduce the peril known to prevail at points where lanes of traffic to and from public hospitals, firehouses and schools intersect public thoroughfares or the tracks of street surface cars. Had the purpose been to impose the duty of “ extreme care,” only at times of greatest peril at those points — as, for example, when ambulances and fire apparatus are entering such intersections or when public schools are in session — we should expect to find a statutory limitation to that effect. Finding no such limitation the courts cannot add one. It was not within the power of the trial court to amend the statute while professing to construe and apply it. “ Freedom to construe is not freedom to amend.” (Sexauer & Lemke v. Burke & Sons Co., 228 N. Y. 341, 345.)

That the statute should be given a broader application than the one for which defendant contends is indicated by the fact that before the date of the enactment the Legislature itself had authorized the use of public schools “ out of school hours ” for various purposes, including “ social, civic and recreational meetings and entertainments * * * pertaining to the welfare of the community.” (Education Law, § 455, subds. 1-6.)

Furthermore, it is a matter of common knowledge that the use of the district school ■— which in earlier days afforded little else than a place where reading, writing and arithmetic could be taught^— has been enlarged with progress jn methods of education. To-day our modern public schools afford not only facilities for teaching subjects within a broader curriculum but in addition State educational authorities now recognize and foster various exfcra-curriculum activities for the student body. Among those activities are indoor and outdoor athletic contests and numerous forms of social entertainment, including student dances such as the one to which the plaintiff Trent was conveying his daughter when they met with the injuries for which they now seek to charge the defendant.

With these considerations in mind, we find that the custody and management of the grounds and buildings of the New York State Teachers College at Buffalo are placed by statute under the jurisdiction of the State Department of Education. (Education Law, §§ 832, 833, 812, 822.) There is also proof that the student body of the institution itself included not only young men and women of college age but children of grammar school age who attended the “ School of Practice^’ where, as the name implies, the older pupils were afforded experience as student teachers. On the night of the accident at least two gatherings were being held in the State school which were reached from Elmwood avenue by the driveway where the accident in question occurred. In the School of Practice was a Boy Scouts meeting where twenty-five boys were in attendance; in another building was the school dance which the plaintiff Eugenia Trent was to attend.

These gatherings were proper uses of the State school property in which they were held. The school authorities had apparently so recognized such use for the buildings were illuminated and made available for the purpose. Such use of the school also involved passage over defendant’s tracks by those going to and from those gatherings, including the plaintiffs. To them as rightful users of the driveway the defendant’s motorman owed the statutory duty of “ extreme care ” as his car approached the crossing. His duty in this regard is emphasized by his admission that he had operated upon that particular route for several years during which time he had passed the site of the accident seven or eight times a day; that on the night of the accident he knew of the sign near the school driveway crossing which warned him of the “ school zone;” that he saw the buildings illuminated and “ knew that something was doing there.”

We are thus led to the conclusion that defendant’s challenge to the trial court’s charge is not well taken and that the judgments and orders from which it appeals should be affirmed, with costs.

In each action separately: All concur, except Taylor and Edgcomb, JJ., who dissent and vote for reversal and for granting a new trial, in an opinion by Edgcomb, J. Present •— Sears, P. J., Taylor, Edgcomb, Thompson and Lewis, JJ.