27 Barb. 221 | N.Y. Sup. Ct. | 1858
Several questions are presented by the defendant. The most important is that relating to the negligence of the plaintiff. There was evidence tending to prove the negligence of the defendant, and also the¡ contrary. When the plaintiff rested, the defendant moved for a nonsuit,
Having thus grouped the material objects, let us ascertain the conduct and acts of the plaintiff. The plaintiff, his son, and Bundel, his hired man, left the plaintiff’s house, at the distance of 86 rods westwardly of the crossing, in a one-horse wagon, for the purpose of crossing the rail road, and working on that part, of his farm lying east of the road. His son sat upon the seat with him. Bundel was in the wagon behind them, sitting upon the bottom of the box. The plaintiff drove along, upon a trot. There is not a particle of evidence that he or his son looked in either direction
John Houghton was at work ploAving for the plaintiff, on the east side of the rail road, some five or six rods southerly and eastAvardly from the crossing. His team was standing still. He saw the plaintiff coming towards the crossing, on an ordinary trot. He saw the train, and he beckoned with his hand towards the plaintiff to keep back from crossing, but did not know that the plaintiff saw him. He heard the plaintiff’s son, as he looked by the tank, say, “ father, the cars are. coming,” and the plaintiff struck the horse. ' The head of the horse had got across the track when the son spoke. The plaintiff was a rod or two from the crossing when the witness beckoned to him to keep back. The plaintiff was looking right at his horse. The wagon had got near the tank house, or about there, when the witness first saw it. The witness also halloed pretty loudly, to the plaintiff, that the *
It is well settled in this state, as a principle of the common law, that he whose negligence has contributed, in any essential degree, to the injury he has sustained, cannot maintain an action to recover damages from the other party, whose acts of negligence have also contributed to produce the injury. When negligence is the issue, it must be an unmixed case. This rule is vastly important ip every day life. It is in constant activity in great and small affairs. The rule, properly understood, should, in my opinion, be maintained in its purity. It is generally salutary in its effects; inducing care, caution and circumspection. The careless and negligent are taught that if they sustain an injury to which their negligence contributed, they must bear the loss;—that the law will afford them no redress.
In the present case the plaintiff, living aboxit a fourth of a mile from the rail road track, owning a farm divided by the track, leaves his house, with a horse and wagon, taking in his son and hired man, and drives along, upon a trot, directly upon the track of the road, without taking the slightest precaution to ascertain the dangerous proximity of the locomotive. This was negligence. And if the rule to which I have referred is to be maintained, it must be so held. If such negligence is a question of law, then the court should have taken the cause from the jury. If it is to be regarded as a question of fact, then the verdict is against undisputed evidence establishing a fact or facts which show, in law, that the plaintiff cannot recover. And it should, for this reason, be set aside. In my opinion it was a question of law for the judge at the circuit, and he should have nonsuited the plaintiff. Negligence is undoubtedly often a mixed question of law
I refer, without remarking upon them, to the following cases: Hartfield v. Roper, (21 Wend. 615;) Spencer v. The Utica and Schenectady R. R. Co. (5 Barb. 337;) 6 Hill, 592; 5 id. 282; 19 Wend. 399; Sheffield v. The Rochester and Syracuse R. R. Co. (21 Barb. 339;) Haring v. The New York and Erie R. R. Co. (13 id. 9;) Pierce on Am. Rail Road Law, 272 et seq.
The plaintiff’s counsel makes the point, that if the defendant was negligent, in not ringing the bell or sounding the whistle, the plaintiff may recover, though he was careless and negligent, provided such carelessness was not so gross as to make applicable the maxim volenti non fit injuria. He refers to the 39th section of the general rail road act, (Laws of 1850, p. 232,) and relies mainly, as an authority, upon Corwin v. New York and Erie R. R. Co. (3 Kern. 42.) The section referred to requires that a bell shall be rung continually for 80 rods before crossing a traveled road or street, or that a whistle shall be so sounded, under a penalty of $25, and declares that the corporation shall be liable for all damages which shall be sustained by any person by reason of such neglect. It would perhaps be a sufficient answer to this position to say that no such question was made, upon the
The defendant requested the judge to charge that if the plaintiff could have seen the approaching train, by looking in the direction of it, before he reached the crossing, and in time to have avoided the collision, his attempt to cross was negligent. The justice refused so to charge, and
Grover, Marvin and Davis, Justices.]
It is not necessary to notice other charges and exceptions.
In my opinion, the case clearly shows negligence on the part of the plaintiff, which contributed to the injury, and he cannot recover, and should llave been nonsuited. It was error to refuse to give the instruction as requested. The order of the special term must be reversed, and a new trial had. Costs to abide the event,