20 N.Y.S. 914 | N.Y. Sup. Ct. | 1892
On the 10th February, 1890, John McGoldrick, the plaintiff’s Intestate, fell at or near the station of defendant at Rome, and received an injury from which death ensued. At that station, and near the sidewalk Shat passes on the west side of James street from the southerly track of defendant to a branch track leading to the track of the New York, Ontario & Western Railroad, the defendants maintained a water column and spout, from which its engines obtained water. The end of this spout, when turned off.
Upon the question of contributory negligence the defendant claims that, as matter of law, the intestate was negligent in carrying his knife in the way he did. A witness on behalf of the defendant testifies that some time before the accident he told the deceased that in carrying these tools “they ought to have a board on them, or a shingle tied on, to keep them from mishap, because, if it were just merely wrapped in paper or cloth, the knife is so sharp that it would slide through, and do some damage;” and the deceased replied that he had used them for a great number of years, and never had any accident. If the jury believed, as they had a right to, that the knife was wrapped up as testified to by the 'wife, and that the deceased was accustomed to carry it that way without injury, it should not be said as matter of law that the deceased was negligent. Parsons v. Railroad Co., 113 N. Y. 364, 21 N. E. Rep. 145; Palmer v. Dearing, 93 N. Y. 7. The defendant claims that the deceased was intoxicated, but that was a disputed question, and was for the jury. The fact that the consequences of the fall were unusual is no defense if in other respects a liability existed. Whart. Neg. § 16 et seq,; Ehrgott
Judgment and order affirmed, with costs. All concur.