41 N.Y. 502 | NY | 1869
The only ground, upon which the defendant's motion for nonsuit was based, was that the evidence showed that the negligence of the plaintiff contributed to the injury received by him. The law required the plaintiff to show, that in crossing the defendant's road, he exercised proper vigilance and care in protecting himself from injury from the locomotives and trains operated by defendant, irrespective of the question whether defendant was or was not negligent. The care to be exercised by the plaintiff required him to make a vigilant use of his eyes and ears, in ascertaining whether trains were approaching, and if from either source or otherwise, he learned that such was the fact, to use caution in avoiding the danger. (Wilcox v. The Rome Watertown Railroad,
All the judges concurring for reversal, judgment reversed.