147 F. 220 | 2d Cir. | 1906
The assignments of errpr challenge the refusal of the trial judge to direct a verdict for the defendant upon the ground that the evidence established the contributory negligence of the plaintiff, and his instructions to the jury upon the question of the negligence of the defendant.
The testimony of the plaintiff that he was struck by the locomotive of the defendant’s train as he was attempting to cross the tracks of the defendant at Monmouth street, and when the approaching train was intercepted from his view by another train which had passed him while he was waiting to cross, and the rest of his testimony bearing upon the question of contributory negligence made, as this court observed upon a former occasion (138 Fed. 28), “an improbable, but not an impossible, case,” and was overwhelmingly contradicted by the evidence introduced by the defendant. Nevertheless the question of his credibility was one for the jury, and if his testimony was true it would have been error for the trial judge to take the case from their consideration.
The trial judge in his charge to the jury upon the question of the negligence of the defendant in effect instructed them to find upon this issue in favor of the plaintiff, because the evidence was uncontradicted that the train of the defendant was moving at a speed in excess of that permitted by the city ordinance. lie refused to instruct them, as requested by the defendant, that the defendant’s failure to comply with the ordinance did not in itself constitute conclusive proof of negligence, and that it was for.the jury to say, in view of the situation and surroundings in that part of the city and all the circumstances, whether the failure to comply was negligence.
The rule established by the weight of authority is, that the violation of the ordinance is not conclusive evidence of negligence, hut is to be submitted to the jury as a circumstance from which negligence may be inferred. Grand Trunk Railroad Co. v. Ives, 144 U. S. 408, 13 Sup. Ct. 679, 36 L. Ed. 485; Hanlon v. South Boston Railroad, 129 Mass. 310; Knupple v. Ice Co., 84 N. Y. 490.
The crossing was at the outskirts of the city, was rarely used, and the approaches to it afforded an unobstructed view for a long distance of a train approaching from any direction; and it could only
The instructions given and refused, deprived the defendant of the benefit of a meritorious defense, and the assignments of error based upon the exceptions to the rulings are well taken.
The judgment is reversed.
