70 N.Y. 119 | NY | 1877
At the first trial, the verdict was based upon the negligence of the defendant in not blowing the whistle in approaching the crossing where the deceased was killed, and upon the assumption that such crossing was a public traveled road.
The judgment was reversed and a new trial granted by this court, upon the point that the question whether the notice required by the act of 1853, regulating the laying out of public highways over and across railroads was properly served, should have been submitted to the jury upon the evidence, which was conflicting. At the last trial the court decided that the crossing was not a public highway, for the want of the service of a notice to occupants of land under the Revised Statutes. As the plaintiff had a verdict, the exception to that decision is not before us, nor is any question, as to the effect of the statute of 1853, upon the provisions of the Revised Statutes. It was conceded by the defendant that there was a farm-crossing at the place of the accident, and it appears that it had been included in a highway laid out several years previous, and that the public had, to some extent, used it as a public highway. The recovery was had upon the negligence of the defendant and its employees in placing obstructions upon its land, and in not giving due and proper warning or signals of the approach of the train, irrespective of the statutory requirement when crossing highways. It was claimed on the part of the plaintiff that the company had piled up on the south side of the track a large quantity of stumps, roots and other material, which had accumulated in preparing additional tracks on the north side; that this material was placed between the fence and railroad track, and
It is claimed on the part of the defendant that the judge submitted it to the jury to determine whether this act on the part of the defendant was negligent, and if so, charged them substantially that it was sufficient to render them liable in this action, providing the plaintiff was free from negligence on his part. I have examined the charge with care, and feel constrained to hold that the learned judge intended to so charge, and that the jury must have so understood the charge. He said: “If you find there was this crossing with the consent of the defendant, then I submit to you. whether it was negligence to place obstructions so near the track that a person could not see a train until it was upon him.” * * * ’ “ Was it negligent in the defendant, when it knew there was a crossing which the public were using, to render it dangerous by an obstruction to the sight?” After submitting the question, whether it was .negligent in omitting to give warning by whistle or otherwise, he adds: “ If you find the company guilty of negligence in either of these respects, then the next question is, Was the deceased guilty of “contributory negligence?” The learned judge evidently intended to put the right of recovery upon the act of placing obstructions upon the same footing as the failure to give necessary warning, provided the jury should find that the placing such obstructions was negligent. In this, I think the learned judge erred. The company had a right to use its own land for any legitimate purpose in the prosecution of its business. Such a use cannot be said to be unlawful or negligent, although it may obstruct, to some extent, the. vision of those who cross the track. A railroad corporation has the same right in this respect as individuals. They are under no legal obligation to refrain from using their property, because such use may hinder the view of travelers.
The obstructions in this case may, and perhaps should, have had a material bearing upon two questions: First, as to the contributory negligence of the plaintiff. If they prevented his seeing the approaching train until he arrived at the track, he would not be negligent for not seeing it before, and secondly, the fact of the existence of those obstructions, with the other surrounding circumstances, were proper to be considered upon the question of the degree of care and vigilance which the defendant was bound to exercise in the running and management of its train, and in giving warning of its approach. It cannot be an independent ground of recovery. No such principle has ever been adjudicated. Neither the case of Richardson v. N. Y. C. R. R. Co. (45 N. Y., 846), nor the case of Mackay v. N. Y. C. R. R. Co. (35 id., 75), so hold. In the former, the members of the court differed in their reasons for the judgment, but it was not intended to decide the principle contended for in this case, and in the Maclcay case the wood was piled in the public highway, and the fact was used upon the question of contributory negligence. It was strenuously insisted, by the counsel for the defendant, that as the defendant was under no statutory obligation to ring the bell or sound the whistle, no action will lie. This involves the principle that if a railroad company complies with the requirements of the statute, they are relieved from liability for negligence. As a general rule this may be true,-.
Neither is it needful to pass upon the question of contributory negligence. It must be conceded, as within the personal experience of every one, that as a general rule the exercise of ordinary care will enable a person to cross a railroad track on foot in open daylight with safety, and it requires a strong case to sustain an action under such circumstances. But such, cases have been sustained, of which the Beisiegel case is a notable example in this State.
That portion of the charge of the judge has been criticised which submitted the question of negligence, other than the obstructions to the jury, as being so broad as to have justified the jury in finding it negligent not to keep a flagman, or other means of preventing accidents, outside of the management of the train. If the criticism is well founded, the charge was erroneous, but it is unnecessary to examine it critically as there must be a new trial upon the charge in respect to the obstructions.
The judgment should be reversed and' new trial granted, costs to abide event.
All concur, except Allen, J., taking no part, and Rapallo, J., absent.
Judgment reversed.