42 N.Y. 468 | NY | 1870
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *470 I shall assume that the intestate was lawfully upon the railroad at the time of the accident. There was sufficient evidence to authorize a jury to find an implied license, to all the persons working at the slaughter-house, to go upon the railroad, between the highway crossing and the slaughter-house. But, I think, the plaintiff should have been defeated at the circuit, both because he failed to show any negligence on the part of the defendant, and because the negligence of the intestate contributed to the accident. The only negligence alleged against the defendant was, that its servants upon the engine did not ring the bell, nor blow the whistle, as required by the New Jersey law. The sole object of this law, it seems to me, was to protect persons traveling upon the highway, at or near the crossing. In the language of ALLEN, J., in the People v.New York Central Railroad Co. (25 Barb., 199), in reference to a similar law of this State, "the hazards to be provided against were twofold: 1st. The danger of actual collision at the crossing; and, 2d. That of damage by the frightening of teams traveling upon the public highway," near the crossing. For the protection of such persons, railroads were required to put up the signboard at the crossing, and to ring the bell or blow the whistle. The signboard *472 was to be put up "so as to be easily seen by travelers," and none of these precautions were required, except where the railroad and highway crossed each other upon the same level; thus showing clearly that the law makers had in mind only the danger to travelers upon the highways by collisions at the crossing. Railroad companies were not required by this law to ring the bell nor sound the whistle when the highway passed along the railroad, nor when it passed at an elevation over it, or under it; nor were they required to take these precautions for the protection of persons walking along upon the railroad. I conclude, therefore, that the intestate was not within the protection of this law, and that the railroad company owed him no duty, under the law, to ring the bell or sound the whistle. But the duty of railroads, as to giving alarms by bell and whistle, is not limited to the measures imposed by this law. They are bound to use at least ordinary prudence and diligence to avoid collisions with persons lawfully crossing their tracks; and hence, at road crossings and in the streets of villages and cities, in the absence of any statute law, they would be required to use these ordinary precautions to avoid accidents, and if they omitted them, they would be liable to persons injured without their own fault by collisions. If the intestate had been walking along upon the north track, and the persons in charge of the engine had seen him in time, it would have been their duty to have rung the bell or blown the whistle so as to have warned him of danger. But he had been walking about 400 feet upon one of the other tracks, and the men in charge of the engine, if they saw him, had no reason to suppose that he would needlessly and heedlessly go upon the north track, immediately in front of the engine; and, when he did do so, it was too late to warn him of danger. If this company was bound to give these warnings to this man, then every railroad company is bound to do so to every person who may be upon the railroad ahead of a train, although he is not on the track and not in a place of danger. I think it would be unreasonable to carry the precautionary obligations of railroad companies to such an extent; *473 and I therefore hold, that this railroad company was guilty, as to the intestate, of no negligence in not ringing the bell or blowing the whistle, under the circumstances disclosed in this case.
II. I also reach the conclusion, that the intestate was guilty of negligence contributing to the accident. We may rightfully assume that the intestate was familiar with this railroad, as he lived and worked in sight of it for three months and daily passed over it between the crossing and the slaughter house, and that he knew that the trains made but little noise in passing over these salt meadows, and that the north track was the one used by westward bound trains. This train was upon time, going at a slow rate of speed. There was nothing to obstruct his view. All he had to do before he passed upon the north track was to look, and the neglect of this ordinary precaution cost him his life. It was not necessary for him to go upon the north track to avoid collision with the eastward bound train. He could have gone between the tracks. Instead of doing this, he needlessly and thoughtlessly went upon the north track with his back toward the coming train. When he was upon the railroad track, he knew he was in a place of danger and that he might be killed; and hence it was his duty to use his eyes and ears, and to take at least ordinary precautions to save his life. Not having done this, I believe it is now well settled that no damages can be recovered on account of his death.
Chicago, c., Railroad Co. v. Hill (
The order of the General Term should be affirmed, and judgment absolute ordered against the plaintiff.
All for affirmance, except HUNT and SUTHERLAND, JJ.
Judgment affirmed and judgment absolute for the defendant. *474
