84 N.Y. 247 | NY | 1881
As to the general principles of law applicable to this case there is no room for argument. It was the defendant’s duty to keep its road-bed at the street-crossing in such condition that a traveler could pass over it in safety, or failing in this, make compensation to a person injured by reason of its omission, unless he was so deficient in reasonable and ordinary care that he brought the accident upon himself. (Laws of 1850, chap. 140, § 28, sub. 5; Cott v. Lewiston R. R. Co., 36 N. Y. 214; Gale v. N. Y. C. & H. R. R. R. Co., 76 id. 594.) That the plaintiff’s intestate was lawfully upon this crossing and there came to his death, is not denied. That he was shaken from the wagon, as its wheels passed into- a hole within the defendant’s tracks, was
Were the jury misinformed or left in ignorance as to the law? The defendant’s counsel asked the court to charge that “ if the driver’s negligence was the proximate cause of the jar which caused the injury, the plaintiff cannot recover.” The trial judge replied: “ I will not alter my charge in that respect. I did substantially cover that ground.” The learned counsel repeated the request, and the court again declined to alter its charge. In each case there was an exception. The testator was a mason, employed on the day in question at Horth Albany. One Atfield was, with his wagon, drawing bricks to the same place, and at the close of the day allowed the testator and two others to ride with him to Albany. In its charge the court had called attention to these facts; the conduct of Atfield, the defendant’s claim that Atfield was negligent, and said: “It is not claimed that between Atfield and the deceased the relation of master and servant or principal and agent existed; he was invited to ride, and I feel bound to say that the facts do not show a condition of things that would warrant the jury in saying that the plaintiff cannot recover, even if they should find Atfield was negligent; they were not engaged in any joint employment; and whatever doubts may have existed as to what the law was, years ago, it seems now to be settled that,
The city had a duty to perform. The street railroad also. An action might perhaps lie against either for the omission of duty leading to the death of the testator, but because this crossing had many guardians, the obligation upon the defendant was in no particular diminished. Whatever rights have been granted by statute or by ordinance to others, the duty of the defendant is paramount, and it owes obedience to the statute by which it came into existence. The evidence shows no act done by the street railroad. The planks at the crossing were placed and replaced by the defendant. The crossing was seen to by it after such manner as it chose, but in whatever manner without interference from the street railway or regard to it. We find also in the statute introduced in evidence by the defendant • (Laws of 1862, chap. 223, § 3) relat
The defendant’s counsel also asked the court to charge that if this injury arose and was caused by the rails of the street railroad company, that is, if it was caused by the wheel getting between the plank and a loose rail of the street railroad, then defendant is not Responsible.
The court: “If it was caused by the loose rail of the horse railroad company, of course your company probably would not be responsible for that, if it was in consequence of the rail.”
No defect was shown to exist in the rails of the street rail
All concur, except Rapadlo, J., absent.
Judgment affirmed.