30 N.Y.S. 501 | N.Y. Sup. Ct. | 1894
The plaintiff, while crossing the railroad track of the defendant’s railroad, with his horse and tvagon, was hit by a motor car, and sustained injury to himself, his horse and wagon, harness and servant, who ivas riding with him, for which he brought this action. The action was prosecuted upon the theory that the injury was produced by the negligence of the defendant’s servants in running the motor. The defendant denies any neg
The evidence does not disclose that the motor in question was running at an unusual, excessive, or dangerous rate of speed; upon the whole evidence, not to exceed four or five miles an hour.- Nor does a fair construction of the evidence justify the finding that the defendant was guilty of negligence in not giving suitable warning of the approaching of the motor to the junction of Kruise and Campbell avenues. There seems to be no statutory requirement that the defendant shall give a warning or maintain a flagman at that point. At the same time, it was doubtless the duty of the defendant to use all the care and caution that a proper regard for the safety of the traveler on the public highway would require, consistent with' the proper enjoyment by the defendant of its franchise and the right to successfully operate its road. It is true that the plaintiff testifies that he heard no bell sounded on the approaching motor; but the defendant proves by several witnesses that a gong was sounded on the car from above the junction on Campbell avenue until the time of the collision. This is established by the positive, affirmative evidence, and, if untrue, the witnesses who testified to it must have committed deliberate perjury; while the evidence of the plaintiff that he heard no bell is of a negative character, and admits of the construction that the bell might have been sounded, and he not have heard it, without charging him with intentional or willful falsehood. Under such circumstances, we do not think the evidence justified the finding by the jury that the defendant was guilty of negligence in running its motor, for which it can be held liable. But if that was such a disputed question of fact that this court should not, on appeal, interfere with the verdict of the jury, still we think that the plaintiff failed to prove freedom from contributory negligence. He was familiar with this crossing. The railroad track was visible for a sufficient distance up Campbell avenue from the crossing to have enabled the plaintiff to have seen the approaching motor car before the collision, if he had looked and listened. It is true that, at the immediate point of crossing, there was a building which hid the railroad track from one passing up Kruise avenue; but that fact called upon the plaintiff for greater caution, and seemed to make
The principles which govern this class of cases are too familiar to require citation of authorities. The plaintiff must prove negligence on the part of the defendant, and freedom from contributory negligence on his own part. Upon the evidence in this case, we think he failed in both particulars, and that the learned judge erred in denying the motion of the defendant to dismiss the complaint, and also the motion to set aside the verdict on defendant’s motion. The judgment must be reversed, and a new trial granted; cost to abide the event. All concur.