24 How. Pr. 172 | NY | 1861
The first question which I propose to
The grounds taken by the counsel on that motion, or that the complaint be dismissed, are: 1, because no damages were proved as contemplated by the statute, neither to the husband, nor to the next of kin, nor are any alleged in the complaint; 2, because no negligence or wrongful act on the part of the defendants is proved, but the contrary; 3, because the undisputed evidence in the case shows positive carelessness on the part of the deceased, which contributed to the accident. The case of Oldfield,, administrator of Downie agt. the New York Harlem Railroad Company, (14 N. Y. R., 310,) and the complaint in the action furnishes a complete answer to the first objection. That case decides that no proof of resulting damages in such an action is necessary to sustain it, and it is alleged in the complaint that the next of kin of Rachel, the intestate, suffered great loss and damage by means of her death. There clearly was sufficient evidence upon the question of the defendants’ negligence to submit the case to the jury. In the first place, it was negligence in the engineer of the express train to run his train past the station at the rate of thirty to forty miles an hour, when he knew the mail train was at the station discharging its passengers. In the second place, it was negligence in the conductor of the mail train to make so short a stop at the station. He should have given more time, and seen to it that his passengers were safely discharged. At least he should have given them reasonable time. In the third place, the station should have been announced in the car where the deceased was. I know there is a conflict in the evidence whether the station was announced in this car or not; that certainly belonged to the jury to decide, and we must assume it was found in favor of the plaintiff. In the fourth place, the defendants’ servants,
The question of negligence in all cases involves a ques- , tion of fact, and it is only where the question of fact is free from all doubt that the court has a right to apply the law without the action of the jury. (Banker agt. Rens. & Sar. Railroad Co., 32 Barb. R., 165-169.) When either the facts or the inference to be drawn from them are in any degree doubtful as to the question of negligence, it is the duty of the judge to submit the matter to the jury under proper instructions as to the law. (32 Barb. R., 144.) The rule upon this subject was well stated by Judge Johnson, speaking for this court in the case of Ireland agt. Plank Road Company, (3 Ker. R., 533,) where he said it by no means follows because there is no conflict in the testimony that the court is to decide the issue as a question of law. He adds, the fact of negligence is very seldom established by such direct and positive evidence, that it can be taken from the jury and pronounced upon as matter of law. On the contrary, it is almost
The remarks above made as to the submission of the question of the defendants’ negligence, apply equally to the question of the negligence of the deceased. The negligence of the party which will defeat his action in such cases is nothing more than want of proper care, and this question is always more or less affected by the conduct of the opposing party. It is not always negligence to cross a railroad track. If the crossing is at a time when no train is due and cannot be reasonably expected to pass, it is not negligence. The passengers in this mail train had no reason to apprehend or expect that the express train would pass them at that station. Their time table required them to pass each other two and one-half miles west of Canastota, and such was their almost invariable custom. Mr. Toby, who kept the railroad house, there says that the trains do not usually meet there, and he did not know as they had that season. It was a thing unusual, and seemed to have alarmed the conductor of the mail train; and Rose, the ticket and freight agent, seemed alarmed that the express train was to pass while the mail train was receiving and discharging its passengers. The flagman, Weldon, says he was so flustrated and confused he could not tell how long the mail train did stop. It was an occurrence that semed to have alarmed Mr. Toby, who .was familiar with all the dangers to be apprehended, and he was on the alert. Rose, the ticket agent, gave special instruction to the flagman. He sent Reese, the baggageman, around the south side of the mail train to see that no one got on the south track.
The point was also taken that the complaint did not state a cause of action; but the point is not made on this appeal, and there is nothing in the proposition, and it is not necessary to consider it. The first two propositions of the defendants’ counsel, in his request to charge, are settled by this court against the defendants in the case of Oldfield agt. The New York & Harlem Railroad Company, (14 N. Y. R., 310.) That case holds that no proof of pecuniary or special damage to the plaintiff or next of kin, in consequence of the death, was necessary to sustain the action. That case also holds that the existence of a widow to share in the damages, is not necessary to sustain the action;, that the action lies in every case where the deceased could have sustained an action for the injury had she survived. The case of Quin, adm’r agt. Moore, (15 N. Y. R., 432,) also affirms the latter proposition.
The third and fourth propositions in the defendants’
There are several answers to the defendants’ objections, that the complaint did not state the names of the next of kin, &c. In the first place, it is not necessary to state them, and in the second place, the objection cannot be taken on a motion for a non-suit. If the defendant had desired to have the complaint more specific in this respect, his proper way was to move to have the complaint made more specific. And in the third place, as this objection was taken on the motion for a non-suit, it could not prevail, for this court has held in the two cases of Quin agt. Moore, and Oldfield agt. The New York & Harlem Railroad Company, above referred to, that the action depends on the right of the
The objection taken to the evidence of Davis and Wardecker cannot avail the defendant. The objection is a general one to the whole evidence. (See case, folios 36, 40, 124.) The most of this evidence was certainly wholly unobjectionable, and consequently the objection goes for nothing, If the counsel had called the attention of the judge to a particular portion of this evidence, by objecting to that specifically, very probably he would have excluded it. It is enough, however, that having objected to this entire evidence in gross, his objection cannot prevail for that reason.
The defendants’ counsel proposed to ask the witness Eose, whether this train stopped ample time for all the passengers to get off, including these ladies. This was objected to, and excluded. This evidence was properly excluded. It presented one of the issues in the cause which the jury were to determine from all the evidence in the case, and the opinion of the witness was not competent evidence. It did not involve a matter of scientific opinion, or where the opinion of experts was competent. (Cook agt. Brockway, 21 Barb. R., 331; Morehouse agt. Mathews, 2 Comst., 514; Merritt agt. Seaman, 2 Seld., 168; The Jeff. Ins. Co. agt. Cathaal, 7. W., 72.) This witness had stated the time of the stop to be from one and one half to two minutes, while others had stated it to be thirty seconds to a minute; and there were other facts in the case upon which the jury were called upon to decide this question of fact. It is sufficient, however, that the evidence was not competent, for the opinion of the witness was not evidence upon such a subject. It was not com
There is, however, another perfect answer to this offer of evidence, in any view which may be taken of the offer ; the evidence was incompetent, as not being within the issue. There is not a single allegation, in the complaint, that it would have been safer to have stopped the mail train either east or west of the station. Nor is there
There are no other questions in the case, and where a trial and general verdict have been had, this court only deal with the questions of law, upon exceptions duly taken; we cannot consider whether the damages are excessive, or the verdict is against the weight of evidence, (4 Kernan, R., 310.)
I advise the affirmance of the judgment. Comstock, Ch. J. and Lott, J., did not sit in the case. Denio, Hoyt, James, and Selben, JJ., were for the affirmance of the judgment below; James thinking that the negligence of the deceased was, if that question were examinable here, sufficient to bar the action, but that there was evidence on that subject enough to raise a question for the jury. Davies, J., expressed no opinion.