188 N.Y. 156 | NY | 1907
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *158
On the 29th day of December, 1902, the plaintiff was struck at the Willow street crossing in the city of Oswego by a locomotive attached to a passenger train owned and operated by the defendant. At the time of the accident she was less than six years of age. She brings this action to recover damages for her personal injuries. The fact that an accident occurred is not disputed, but the extent of the plaintiff's injuries and the responsibility of the defendant therefor is denied. The action has been tried twice. On the first trial the plaintiff recovered a verdict. The judgment entered thereon was reversed by the Appellate Division and a new trial ordered, "Upon the ground that the verdict of the jury was against the weight of the evidence," one of the judges concurring in the result, "Only upon the ground that the finding of the jury that the defendant was negligent was against the weight of the evidence." (Serano v. N.Y.C. H.R.R.R. Co.,
This court, as said in the case last mentioned, can review *161 the questions of law that were before the Appellate Division. Our review is confined to such questions. The plaintiff is the child of poor parents, who for three or four years prior to the accident lived a short distance from the crossing where the accident occurred. She was an intelligent child, and had attended school for about one year prior to the accident. She had been accustomed to cross the tracks of the defendant's road without attendants, and to play with other little girls in the locality of the crossing. She had been told by both her father and mother that in crossing the railroad tracks she should be very careful and look up and down the tracks before crossing to see if a train was coming.
It was not negligence as a matter of law for plaintiff's parents to permit her to go into the street. (Huerzeler v.Central C.T.R.R. Co.,
All of the questions involved in the trial, including the question as to whether the plaintiff was sui juris or not, and as to the imputed negligence of the plaintiff's parents, were left to the jury in a charge to which, except as hereafter mentioned, there was no exception and in which the court granted all of the numerous requests to charge made by the defendant's counsel. The defendant excepted to a statement by the court that if the jury found that the plaintiff exercised such care as is required of an adult under similar circumstances, that any negligence on the part of the parents was not imputable to the child, and to the charge of the court that if the jury found the speed of the train was from fifteen to twenty-five miles an hour and they also found that to be a dangerous and excessive rate of speed in the locality of this crossing that they might then find the defendant guilty of negligence. *165
We find no error in the charge of the court. If a child is capable of exercising the care that is required of an ordinarily prudent person of full age, and such child does exercise such care, the suggestion of negligence on the part of the parents imputable to the child is wholly negatived. The imputed negligence of the parents is wholly based upon the inability of the child to exercise the care and prudence of an adult.
In the absence of signals or safeguards by way of gates or flagmen, a speed of from fifteen to twenty-five miles an hour around a very abrupt curve at a much-used crossing in a city is some evidence to submit to a jury on the question of defendant's negligence. (Zwack v. N.Y., L.E. W.R.R. Co.,
A child of tender years is not required to exercise the same degree of care and prudence in the presence of danger which is expected and required of an adult under like circumstances, but she is required to exercise such care and prudence as is commensurate with one of her age and intelligence. (Wendell v.N.Y.C. H.R.R.R. Co.,
The opinion of the court in the Appellate Division concedes that the record discloses a conflict of fact upon all the questions involved between the parties except the question as to whether the plaintiff was guilty of contributory negligence. In its opinion, referring to the defendant's negligence, the court say that, "By far the greater weight of evidence is to the effect that the speed was not excessive and that the bell was ringing as the train approached the crossing." And also, referring to the amount of the verdict, the court say, "The verdict for the plaintiff on the first trial upon the same evidence as to damages was $600, and upon this $5,000. It is grossly excessive." *166
The evidence on the former trial is not before us, but even if it were and we were inclined to agree with the Appellate Division as to the weight of the testimony relating to the defendant's negligence, and as to the amount of the verdict, this court cannot consider the weight of evidence or questions relating to an excessive verdict. (Dimon v. N.Y.C. H.R.R.R. Co.,
As we have stated, we can only consider whether the reversal of the judgment entered upon the verdict should be sustained as a matter of law. We cannot agree with the Appellate Division in holding as a matter of law that the plaintiff was guilty of contributory negligence. In view of the plaintiff's age; the peculiar danger arising from the abrupt curve in the defendant's road; the noise and confusion produced by the east-bound train; the extent to which the view to the east was obscured by the train going east; and the smoke and steam therefrom, it made the plaintiff's negligence under all the circumstances and testimony disclosed by the record, a question of fact which was properly submitted to the jury.
The distinction between the facts in this case and those in cases like Weiss v. Metr. Street Ry. Co. (
There was some evidence upon each of the questions at issue which required that all of the issues involved in the action be submitted to the jury for their determination.
We have examined the exceptions to the admission and rejection of evidence and do not find any error in the rulings of the court which justified the reversal by the court below.
The order of the Appellate Division should be reversed and the judgment entered upon the verdict affirmed, with costs in all the courts.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT and WILLARD BARTLETT, JJ., concur; GRAY and HISCOCK, JJ., not sitting.
Order reversed, etc. *167