38 A.D. 60 | N.Y. App. Div. | 1899
Lead Opinion
This is an action to recover damages for the negligent killing of the plaintiff’s husband, in Connecticut. The defendant is organized under the laws of that State and asserts that it is a foreign corporation which can be sued here only in the cases provided for in section 1780 of the Code of Civil Procedure. Whether it is a foreign corporation within the meaning of that section has been doubted. (Phelps v. N. Y., N. H. & H. R. R. Co., 17 App. Div. 392.) But, assuming that it is, the plaintiff could not maintain the suit in this jurisdiction without being a resident of the State of New York. She formerly lived in Connecticut and moved to this State in Janu
The testimony of the plaintiff herself was the only evidence on the subject of her residence. At the close of the case one of the grounds stated for the defendant’s motion to dismiss was that it did not appear that the plaintiff was a resident of this State within the meaning of the statute giving the court jurisdiction of actions against foreign corporations, and this point is the first which we are called upon to consider upon the present appeal. The simple physical change from Connecticut to Brooklyn, it is argued, was not enough. There must also, it is said, be an intention that the change shall be permanent; while here the plaintiff had not made up her mind definitely one way or the other as to her' future abode.'
In the Phelps Case (supra) the question of the plaintiff’s residence was held to have been properly left to the jury, but there the plaintiff testified positively that he had made up his mind to come to New York to live permanently. It is true that the intent of the plaintiff here is not so clearly manifested, but, so far as she had formed any plan for the future, it would seem that she contemplated remaining in Brooklyn rather than going anywhere else. To effect a change of residence there must be an intent to abide in another place, accompanied by an actual going to that place and abiding there. While to constitute a person a resident of a State he must intend to make, and actually make, that State his home, it is not necessary that he shall have determined to make it always his home. We think that the plaintiff’s testimony was sufficient to sustain a finding that
The plaintiff’s intestate was killed by one of the defendant’s trains while he was attempting to drive across the tracks of the Berkshire division of the defendant’s railroad in the town of Derby, Connecticut. The highway on which he approached the line descends quite abruptly toward the railroad, the grade being about ten feet to the hundred. The evidence in behalf of the plaintiff tended to showthat the deceased, exercised due precaution in approaching the track, the view of wdiich was partly obstructed by an embankment and a fence. There was testimony to the effect that he stopped at a dis- ■ tance of eighty or ninety feet and looked in the direction from which the train was coming, and that he stopped again when only ten feet from the railroad. He then drove on and was struck by the locomotive and killed. The proof could be so viewed as to lead to the conclusion that no signal whatever was given of the . approach of the train to the crossing until too late to serve as a warning, and that the train was running down grade at a high rate of speed. The evidence in respect to negligence and contributory negligence was such as to require the submission of the case to the jury, and the verdict in favor of the plaintiff should stand unless the-learned trial judge erred in charging the plaintiff’s first request.' This alleged error is the only other point which it is necessary for us to discuss.
That request was in these words: “ If the engineer saw the deceased was in danger of being run into when he reached the crossing, provided the speed of his engine was not checked; it was his; duty to do all reasonably within his power to prevent the disaster by proper efforts to stop his train as soon as he could.”
If this meant, as is .argued by counsel for the appellant, that the engineer was bound to do something to stop his train merely because he saw the deceased at a distance of 100 feet from the track driving-
.“7. The engineer of the train was justified in assuming, if his locomotive was in sight and the horse was under, control, that an attempt would not be made to pass in front of the locomotive.
“ 8. The engineer was also justified in assuming that, if the plaintiff’s intestate could have seen or heard the train in time to remain in a place of safety, he would have remained there.”
As qualified and éxplained by these additional statements, the previous instruction given at the plaintiff’s request was not erroneous :and could not have been.misapprehended.
We think the judgment should be affirmed.'
All concurred, except Woodwabd, J., who read for reversal, with whom Goodbioh, P. J., concurred.
Dissenting Opinion
The court had charged th jury fully as to its duties in the premises, and at its close counsel for the plaintiff asked that the jury be instructed that, “ If the engineer saw the deceased was in danger of being run into when he reached the crossing, provided the speed of his engine was not checked, it was his duty to do all reasonably ■within his power to prevent the disaster by proper efforts to stop his ■train as soon as he could.” This was duly excepted to on behalf of the defendant, but the court so charged. It was. in evidence that the engineér of the train saw plaintiff’s intestate when the engine
All the engineer was bound to do after the discovery of the peril was to use reasonable diligence and care to avert it.” In other words, the railroad having the paramount right at crossings, the engineer has the right to assume, in the absence of special circumstances, that persons approaching the crossing will stop in time to Avoid collision; and he is charged with no higher duty than the exercise of reasonable care in the management of his train to avoid eollisions at crossings, and the charge of the trial court, under the ■circumstances of this case, was error. Nor is this error cured by the further charge of the court, at the request of defendant’s counsel, that “ the engineer of the train was justified in assuming, if his locomotive was in sight and the horse was under control, that an Attempt would not be made to pass in front of the locomotive,” and that “ the engineer was also justified in assuming that if the plaintiff’s intestate could have seen or heard the train in time to remain in a place of safety he would have remained there.”
These additional propositions were made without withdrawing
The judgment should be reversed and a new trial granted, costs to abide the event.
Judgment and order affirmed, with costs. ■