11 N.Y.S. 452 | N.Y. Sup. Ct. | 1890
Lead Opinion
After a very careful examination of the evidence in this case, aided by the elaborate briefs of counsel furnished on two arguments of the appeal, we are impressed with the conviction that the evidence bearing upon the question of the degree of care exercised by the plaintiff’s intestate, for his own safety, in the attempt to cross the tracks of the defendant railroad, on the occasion of the casualty which was the subject of this inquiry, was not such as to warrant a verdict in favor of the plaintiff. The rules of law which govern yiis conclusion are perfectly well settled, and are not open to discussion. The burden was upon the plaintiff to establish, affirmatively, the fact that the deceased exercised all due and reasonable care to avoid the collision which resulted in his death. That this fact may, and in most cases of this character can, only be established by reasonable inference from the attending circumstances proved in the case is undoubtedly true; and equally so that where such inference may be legitimately drawn from the evidence it is the province of the jury to say so by their verdict. But the rules thus stated imply'
Childs, J., concurs.
Dissenting Opinion
(dissenting.) On the 23d day of January, 1888, James Mulligan, a resident of the village of Canandaigua, was riding north, on Main street, in that village, in a cutter drawn by one horse. Martha Bennett, a girl about 14 years of age, rode with him. Main street runs nearly north and south, is eight rods wide, and has a street railroad in its center, the traveled part being about two rods wide on each side. There is a paved gutter on each side of the street, also a sidewalk of the width of 16 feet. There are two railroads which cross this highway, the defendant’s and one known as the “Peanut,” going to Batavia, which, at the point of crossing, is south of the defendant’s road, the nearest rails of the two roads being about 10 feet apart. At the point of crossing the roads run parallel with each other. In crossing the street to the west there is a slight curve to the north, which increases as the road proceeds westerly. The highway ascends slightly to the north. The roads run parallel until after crossing the iron bridge, which is 164 feet long, and 200 feet from the west line of Main street. The defendant owns a switch-house about 3 feet west of the line of Main street, about 8 feet square and 10 feet high. There is also a large brick building, known as the “Town House,” west of Main street and north of the defendant’s tracks. Its front end is 30 feet from the tracks, which so curve to the north, going west in the direction of the iron bridge, that the rear end of the building is within 8 feet of the track. In approaching the tracks from the south this building somewhat obscures the view of the track west of it to the iron bridge. A number of dwelling-houses obstruct a clear view of the track west of that point. As the deceased approached the railroad tracks about 5 o’clock p. m., there was a locomotive and two passenger-cars on the Batavia track, just west of Main street, so that the rear end was as far west of Main street as the west side of the switch-house. The effect was to obstruct the view' of the deceased, as the evidence tends to show, until he got very near the Batavia track. There was also a large ice-wagon, drawn by two horses, standing near the Batavia track, and eight or ten feet south of it. The evidence tends to show that the Batavia engine was making considerable noise, blowing off steam, which passed over Main street, thus somewhat obscuring the view. It also appears that when the flagman notified the ice-man of the approach of the train, his wagon was between him and the cutter. A* the time above stated, the defendant’s train, known as the “Hew York Express, ” crossed the highway, going eastward, where it struck and killed the deceased. The above was the situation at the time of the accident. This action is brought by the widow of the deceased, under the statute, to recover damages for the benefit of the next of kin of her husband. The action was tried in February, 1889, before Justice Macomber and a jury. The trial resulted in a verdict of $5,000 for the plaintiff. At the close of the plaintiff’s evidence, the defendant moved for a nonsuit, claiming that no negligence was proved on its part; also that the plaintiff failed to show want of negligence on the part of the deceased which contributed to the injury. The motion was deniéd. The defendant’s central contention is confined to the last proposition. There was evidence tending to show negligence on the part of the defendant in omitting either to blow the whistle or ring the bell up to the time of the accident; also that the train was running at a high rate ofspeed. There were other circumstances proved tending toshow negligence. The trial justice was undoubtedly right in submitting that question to the jury. Thompson v. Railroad Co., 110 N. Y. 636, 17 N. E. Rep. 690.