23 Barb. 643 | N.Y. Sup. Ct. | 1855
This verdict cannot be sustained, unless the injury recovered for was caused by some wrongful or negligent act of the defendants, their agents or servants. The train of cars which frightened the horse was on the defendants’ own premises, in its legitimate use, moving at proper speed, and there is no pretense that its management was unskillful, negligent or improper. But the plaintiff based her right to recover, not upon the improper, negligent or unskillful use or running of the trains, but, 1st. Because of an encroachment by the rail road upon the turnpike way, and negligently omitting to restore the same to its original width. 2d. Because
Unless there was an encroachment by the rail road upon the turnpike, the first point must fail. Without an encroachment the turnpike was not impaired, and hence there was no omission of duty upon which to predicate negligence. The evidence not only failed to establish this allegation of the complaint, but affirmatively showed that there was no encroachment in fact. As there was no conflict of evidence, this point should have been disposed of by the court, instead of submitting it to the jury.
The plaintiff was not entitled to recover upon the second ground. It was not disputed, that many years previous, the defendants made excavations north of the turnpike, in procuring dirt for their rail road, and that large stones were left in such excavation, and that no protecting fence was ever erected between such excavation and the turnpike; but neither the excavation, the large stones, nor the absence of a fence were the proximate or even remote cause of the accident; for which compensation is now sought. Had there been a fence between the turnpike and the stones, it is barely possible that the plaintiff might have escaped without injury; or in. the absence of the excavation or stones, the injury might have been less severe ; but it is equally possible that had it all been otherwise, the injury might have been much more severe. However that may be, no action for negligence can be predicated on such probabilities. To entitle the plaintiff to a verdict, it was incumbent on her to show that the negligence complained of was the proximate cause of the injury sought to be compensated; and in the absence of such proof, the defendants’ liability was a question of law. (14 John. 304.) But there are other reasons why this action could not be sustained on this ground. The excavation
This action cannot be sustained upon the third ground, if the defendants were authorized to construct their rail road upon the line located. Their charter authorized the construction of a rail road between Schenectady and Utica, on the north side of the Mohawk river, upon such line as the directors of said corporation should designate; and the proof was undisputed, that this track was constructed upon a line designated and located in pursuance of said charter. ' It was, however, insisted by counsel, that this right of ¿onstruction was dependent upon certain conditions which had not been complied with, and reference was made to the ninth section of the act of incorporation, to sustain that positipn. But it will be seen that that section has application only where the rail road crosses, intersects or encroaches upon a highway, &c. In this case it does neither. The defendants’ right to construct the track at this place was fully established; and having such right, negligence cannot be predicated upon its exercise, nor upon the proper use of the track, after its construction. It was most certainly error for the judge to submit to the jury the question whether the limitations and conditions imposed by section nine of the charter had been complied with, when in law such limitations and conditions had no application to the case.
The court also erred in charging the jury “ that if bringing the rail road into close proximity to the turnpike rendered it dangerous to the safety of persons traveling the turnpike with teams, and thereby impaired its usefulness to the public, the defendants were bound either to remove the two roads farther from each other, or to separate them by protecting guards.” In this part of his charge the circuit judge followed the case of Moshier v. Utica and Schen. R. R. Co. (8 Barb. 423.) That was an action against these same defendants for an accident happening to a horse on this same turnpike, under similar circumstances. But, with due respect for the learned judge who pronounced that decision, I cannot assent to the foregoing propo
The learned judge, in Moshier v. Utica and Schen. R. R. Co. (supra,) further asserts that “ these defendants, aided by the improvements of modern science and stimulated by a laudable spirit of enterprise, were engaged in a mode of transportation unknown to the common law, and which, without the authority of statute would be an indefensible nuisance.” Also, that “ when rail roads and turnpikes are parallel and in immediate contiguity to each other, persons traveling on the latter with horse teams are sometimes exposed to imminent danger by the mere sight and noise of a moving train. It was in part the anticipation of this danger and the necessity of guarding against it, that dictated the policy of requiring the defendants to purchase the turnpike and assume the liabilities of that corporation before they should be permitted to run cars upon their road.” I am again compelled to differ from the conclusion in each of the foregoing propositions. In the former, the defendants having the right given them by statute so to transport persons and property, it may be lawfully exercised. Besides, such roads are now a necessity of the age, and should not be
In the latter proposition I conceive the learned judge has entirely misconceived the motive which compelled the defendants to purchase the turnpike. It was private interest, and not public policy, which produced that result. At the time this rail road charter was granted, but little was known of the practical workings of steam power on rail roads, or what would be the effect of the sight and noise of moving trains upon teams traveling on highways contiguous thereto ; but it was supposed that the construction and operation of this road would reduce the travel on the turnpike and render its stock valueless, and the risk of a loss was legislated on to the rail road corporation. The fact that this last named corporation was authorized to abandon the turnpike is proof that considerations of public interest did not dictate the act which compelled-its purchase.
The plaintiff is not entitled to recover upon either of the grounds on which she bases her action. And, moreover, as on the trial the charge of the judge was erroneous in the several particulars pointed out, and questions were submitted to the jury which should have been decided by the court, the judgment' is set aside and a new trial granted; costs to abide the event.
Hand, Cady, C. L. Allen and James, Justices.]
