106 N.Y. 589 | NY | 1887
The action was brought to recover damages for injuries sustained, by reason of the defendant’s negligence
The contention was against the plaintiff’s claim as set forth in the complaint, and in proof of which evidence was given, viz.: That after disembarking from his train, and while stand • ing upon the platform and preparing to leave, “ he was run against and knocked off the platform, and run over “ by the defendant’s train coming from the south over a track laid just east, and outside of the platform. He had never before been in Hartford, and, as the complaint alleges and as he proved, “was totally ignorant that there was any such track,” or of the approach of the defendant’s train; and one point of his accusation was that no preliminary warning was given to him in that behalf; that it was dark; that the train came up unseen by him, without notice of its approach, by bell or whistle, or other signal, at an improper rate of speed, under the circumstances, and “greater than the law permitted; that on his part, he, with proper care was upon the platform in the course of exit from the station, to go to his destination in.
The learned counsel for the defendant then repeated the ' motion above referred to; it was denied, and he moved the trial court to direct a vérdict for the defendant. This, also, was denied. In submitting the case to the jury the learned trial judge presented the facts and the evidence at the foundation of the claims of the respective parties, and the principles of law applicable thereto, in a manner so comprehensive and fair that, so far as it concerned the conduct and duty of the respective parties, no exception was taken by either. The defendant’s complaint is that he did not say more. Numerous requests were made by its counsel for instructions to the jury, and refused, but, of the exceptions then taken, only a few are now insisted upon. Other questions arise upon evidence. But the first and principal contention upon this appeal is, that the learned trial judge erred in not taking the facts away from the jury and declaring, as matter of law, that the plaintiff was not entitled to recover.
In an action for negligence the burden of proof is upon the plaintiff to show that the injury complained of was caused by the defendant, not in part, but solely, and so the courts hold that the person injured must not, by his own negligence, have contributed to the injury. What was the plaintiff’s conduct
The defendant’s case presents a different theory. Its counsel argues'that the plaintiff was careless in the manner of leaving the train by which he was brought into the depot, careless in going to and standing upon the platform; and more than that, if the extreme statements of the defendant’s witnesses are to be credited, he was foolhardy and suicidal in leaving the platform in face of the approaching train, with its head-light blazing upon the track and its bell filling his ears with notice of danger. Hor can I say that there is no evidence from the defendant which, in . some aspect, does not justify these inferences. It is at variance with that of the plaintiff, irreconcilably so; The defendant’s witnesses are also at variance with each other, and their statements, as to-certain material points, contradictory to the last degree. They agree, however, in this, that the head lamp was lighted, that the whistle sounded at the proper distance, and that on entering the station the bell was rung. The speed of the engine is put by them variously at four, five, six and eight miles an hour, as matter of opinion ; but upon the main point raised by the defense, whether the plaintiff was on the track at the time of the injury, and not, as he claimed, on the platform, the difference between them is very great. The engineer of the train states that the head-lamp was lighted and so illuminated the track before it that if a man had been upon it he could have been seen at a distance of 300 feet. The engineer was on the right hand, that is, on the east side of the engine, looking ahead as he drew into the station, but did not see Mr. Archer that night. Pie saw no one in front of his engine, no one on the track, and knew nothing of the accident at the time it occurred. He was afterwards informed of it. The defendant’s superintendent of motive power was at the station by the baggage-room; he heard the whistle and the bell. The engine was new, and he was watching its motion; “ it labored exceedingly and moved very slowly coming into the station.” While the train was in motion and had not wholly
So far, the evidence is not inconsistent with the plaintiff’s case. It certainly has no tendency to show that he was not knocked off the platform by the overhanging car. He was not seen upon the track by the engineer, although the latter was in position to see him if there, and, in the performance of his duty, was intent on discovering intruders or other objects in his way. The master mechanic, in all probability, would have seen him if upon the track and in the way of the locomotive. He did not, but following the rush of people he found the plaintiff where he naturally would have been had he, at the very moment, been .swept off. Even when the train stopped, one or more of the cars had not passed him. The fireman was on the left or west side of the cab, looking out of the window. He did not see Mr. Archer or know of the accident until after the train had stopped. Other evidence Avas from one Doaviis, a teamster. He was. at the station and saw Mr. Archer before he was injured, standing on the platform and talking to a haclcman. He heard the bargain made and at once stepped to the middle of the track, and from there to his horses, just outside the track. He did not see the plaintiff leave the platform, and next heard some one say a man was killed. This evidence also has some tendency to corroborate and strengthen the plaintiff’s case, and, as the witness was near at hand, with his attention called to the train as it approached, presented the question whether, if the plaintiff had left the platform of his own will, he must not have seen him. Goff, a hackman, also- called for the defendant, was on the east side of the east track, outside the depot, ten or twenty feet from the incoming train. He says: “ I saw Mm (Archer) fall; my first impression Avas that he fell
. Two juries have agreed; two General Terms have been asked to review the facts; the first granted a new trial only for misdirection by the trial judge, the second affirmed the judgment which followed the new trial and affirmed the order of the trial judge, which denied a third. It is not for this court to decide whether the evidence was weighed as it would weigh it, nor whether it would have reached the same conclusion as that expressed by the verdict. The court which
First. The injuries were inflicted by a company organized under the laws of Connecticut, and, therefore, subject to them. So much is admitted by the pleadings. In the course of the trial the plaintiff was permitted, against the exception of the defendant, to read in evidence portions of the statutes of that State, which relate to the running of railroad trains, stating at the time that he offered them as bearing upon the issue as to defendant’s negligence. The objections were that, under the pleadings, the evidence was inadmissible, immaterial and irrelevant. The court, in its charge, made no allusion to those statutes, but defined the ground of defendant’s liability, if any, and its duties in a manner satisfactory to the defendant’s counsel, and was then asked by him to charge “ that the jury, in considering the case, must not be influenced by section 73 of the Revised Statutes of Connecticut, which has been read in their hearing,” and so in regard to sections 78 and 57. Section 73 related to the ringing of a bell on approaching a crossing and was proper and, in one view, important for consideration ; the others related also to the running of trains, and, though less important, were not irrelevant upon the question of negligence. It is quite impossible the defendant could have been prejudiced even without the qualification made by the judge when requested by plaintiff’s counsel to charge that “ if the jury should find that there we2-e switches south of the depot and south of Asylu2n street, and that by the laws of the State of Connecticut, section 78 of the Revised
Second. The plaintiff offered in evidence a photograph representing, as he claimed, the locus in quo of the accident. The appellant alleges error in its'admission. Upon the trial this occurred : The plaintiff, being on the witness stand, was asked to look at the photograph and £l see if that describes fairly the locality ? ” Before answering he was questioned by defendant’s counsel, and said : ££ This was not made by me; I don’t know from what point it was taken ; I don’t know to what point, as a focus, this instrument was directed. (Objected to by defendant’s counsel; objection overruled, and defendant’s counsel excepted.) A. Yes, sir.”
The proposition now submitted by the appellant to show error is, that “ there was not sufficient proof of the point from, or the time at, which the photograph was taken to entitle it to be submitted to the jury as a picture of the premises as they existed at the time of the accident.” The objection at the trial was a general one and within our decision in the Cowley Case (83 N. Y. 464, 476), unavailing. If a fair representation of the premises, it was admissible as an aid m the investigation, as much so as a map or other diagram, and served in like manner to explain or illustrate and apply testimony. Such drawings are uniformly received and are useful, if not indispensable, to enable courts and juries to comprehend readily the question in dispute as affected by evidence. (People v. Buddensieck, 103 N. Y. 487, 501.) Of course, its value, like the value of other evidence, depends upon its accuracy. There was some evidence of this and the witness
All concur, except Earl, J., not voting.
Judgment affirmed.