47 N.Y.S. 1034 | N.Y. App. Div. | 1897
The negligence charged against the defendant in this action is an omission to give proper signals or warning of the coming train, as it approached the crossing, and also that the train was run over such crossing at an improper and dangerous speed. With reference to the question whether speed over a highway crossing can be so great as to be deemed in itself a negligent act on the part of the railroad company, a distinction seems to have been made between such crossings in a city or village and those in the open country. It is plain that the rules applicable to crossings in cities and villages should not be applied to the crossing in question. It was an ordinary highway crossing in the open country, and the rule applicable to such we may now assume is well stated in Martin v. Railroad Co., 27 Hun, 532, affirmed in 97 N. Y. 628. Under that rule, the speed at which the train crosses the highway
“It is also charged here that the train was running at a high and dangerous rate of speed at that crossing; at a rate of speed which was negligence upon the part of the defendant. I charge you, as matter of law, that the defendant, in the operation of its trains upon that road, in the open country, was not hound to run at any rate of speed. It could operate its trains at a rate of speed as pleased it, but in approaching a crossing it was bound to exercise proper care-reasonable care; and that reasonable care which it must exercise in approaching a crossing depends, so far as its speed is concerned, upon all the surroundings, the nature and circumstances and condition of the crossing, and whether or not it is a highway upon which there is little travel or upon which there is a great deal of travel,—whether or not the view is obstructed of an approaching train, or whether it can be clearly seen. Various facts and circumstances may exist, and do exist, upon which that question of the negligence of the defendant in the operation of its trains rests. So that it is a question for you as to what rate of speed that train was running, * * * What does the evidence satisfy you with regard to the rate of speed of that train upon that occasion, when approaching this crossing, and in view of all the circumstances surrounding that crossing? Iii view of its condition as you find it from the evidence to be, was the train upon this occasion running at a dangerous rate of speed, so that you can say, as a question of fact, it was negligent?”
The defendant’s counsel then asked it to charge that:
“If the jury find that the defendant did give a proper signal, either by ringing a bell or blowing a whistle, on approaching this crossing, sufficient to warn travelers on the highway, that they cannot find a verdict against this defendant, predicated solely on the speed at which this train was going, passing this crossing.”
The court replied:
“I decline to charge in that respect any differently from what I have already charged.”
It is manifest that this charge does not adopt the rule above stated. Although it told the jury that the defendant was at liberty to operate its trains at any rate of speed it pleased, yet it at the same time instructed them that it must approach the crossing with reasonable care, and that, so far as speed is concerned, reasonable care would depend very largely upon the condition of the crossing and the circumstances surrounding it. It does not call their attention at all to the fact that if the signals of approach are timely, and adequate to the rate of speed used, then the very highest speed would be consistent with reasonable care; and when that point was made, by the request of defendant’s counsel, the refusal of the court to charge it very clearly gave the jury to understand that, even though they conclude that proper signals by bell or whistle were in fact given, sufficient to warn the deceased, never