9 N.Y.S. 879 | N.Y. Sup. Ct. | 1890
This is an appeal from a judgment and order refusing a new trial upon the minutes in an action to recover damages for personal injuries. The evidence was ample to warrant the submission of the ease to the jury, and the verdict must stand unless some error to the prejudice of the defendant was committed upon the trial. The charge of the judge seems to have been quite as favorable to the defendant as the facts warranted.
The train that struck the plaintiff was coming from the north, and its ap
The negligence of the defendant was sufficiently proved. The exception as to ringing the bell and blowing a whistle has no place in the case. £Tot a word has been said upon that subject in the complaint, or the charge of the judge. The whole issue as to defendant’s negligence was with reference to the management of the gates, and therefore there was no issue or question in the case in respect to ringing a bell, and the request was utterly immaterial.
The charge that raising the gates was an assurance of safety, and an invitation for the plaintiff to proceed, was not error. Palmer v. Railroad Co., 112 N. Y. 234, 19 N. E. Rep. 678; Glushing v. Sharp, 96 N. Y. 677. In the last-named case, Judge Earl, in his opinion, says: “The raising of the gate was a substantial assurance to him of safety,—just as significant as if the gateman had beckoned to him, or invited him to come on; and that any prudent man would not be influenced by it is against all human experience.” We have examined all the exceptions, and find none sufficient to disturb the judgment.