25 N.Y.S. 1009 | N.Y. Sup. Ct. | 1893
This action was brought to recover $5,000 by the next of kin of one Joanna Burke, who was struck and fatally injured by one of the trains of defendant at the crossing of the Spuvten Buyvil & Port Morris Railroad called “Hanlon’s Grossing,” on the 20th of July, 1890. On the trial the plaintiff had a verdict for $5,000, and from the judgment entered thereon, and from an order denying a motion for a new trial, the defendant has appealed.
The question presented upon this appeal is whether, upon the conceded facts, the plaintiff has shown that the deceased was free from any negligence which contributed to the accident. It appears from the evidence that the deceased had lived at Spuyten Buyvil, in the same house in which she lived at the time of the accident, upon the east side of the tracks, and immediately in view of the crossing at which she was killed, for about 20 years. On the 26th of Becember, 1882, an ordinance was approved by the mayor, which required that there should be maintained on each side of steam surface railroads, at crossings in the Twenty-Third ward, gates, which, should be kept down for one minute before the approach of trains, for the protection of persons intending to cross the railroad. It appeared that, although there were gates at each side of the crossing in question, the gateman who was in charge was not on duty after 7:30 in the evening, and before 7 o’clock in the morning, and never had' been since the passage of such ordinance and the erection of the gates. According to the testimony offered upon the part of the plaintiff, the deceased was seen, about a quarter past 9 in the evening, coming over the crossing, and passing along the road, and, some five or ten minutes afterwards, returning, and going
Upon examination of the charge of the learned court, it will be seen that the jury had an erroneous impression in regard to the burden of proof on this question of care, and the degree of care which the deceased was bound to use. The court charged that “it was the duty of the deceased, as she was about to cross that track, to exercise diligence and care in ascertaining whether or not a train was approaching; and if she failed to exercise the care that you would expect from a prudent person, under the circumstances disclosed by the evidence, then the plaintiff cannot recover in the action.” After calling attention to the testimony, the court further said, “You are to determine from this evidence whether, in fact, Joanna Burke did exercise any care in crossing the track, and if you come to the conclusion that she did not,” etc. It was not a question as to whether she exercised any care, but whether she exercised the care which the law said a person of ordinary prudence will exercise under these circumstances. The court further charged: “If you come to the conclusion that she did not look for the train, and by looking could have seen the train, and if you come to the conclusion that the accident happened because she did not look for the train,” then the plaintiff was not entitled to recover. In other words, the jury were instructed that, unless they found that she did not look for the train, the plaintiff was entitled to recover;
There may be a question, also, as to the amount of damages. There seems to have been no basis in the proof as to pecuniary damage for the large sum awarded. Upon the whole case, we think that the court erred in its disposition, and that the judgment must be reversed, and a new trial ordered, with costs to appellant, to abide event. All concur.