Sutherland v. Troy & Boston Railroad

125 N.Y. 737 | NY | 1891

The following are extracts from the opinion:

“ The contributory negligence of Sutherland is the difficult point in the case. If this question was not in the case, we think the judgment would have to be reversed for error in submitting to the jury the question of the competency of Johnson. The only suggestion of his incompetency made by the plaintiff is founded upon the fact that he was but a little over seventeen years ,of age. It was shown that he had had more than a year’s experience as telegraph operator; that for *739more than three months prior to the accident, he had been the operator of the defendant at this point, and had discharged his duties intelligently, to the entire satisfaction of the company; that the company employed him on the recommendation of the manager of the Western Union Telegraph Company at Rutland, and of the train dispatcher of the Delaware and Hudson Canal Company, and that he was perfectly conversant with the rMes, and was a first-class operator,’ and it also appeared that young men were'generally better operators than older men. The plaintiff did not undertake to controvert the proof of the defendant on the subject.

“We think, under the circumstances, the jury could not be permitted to infer that Johnson was incompetent in fact from his age only, or that the company was negligent in employing him, or to speculate whether, if the operator had been a man of mature years or judgment, he would have been less likely to have committed the mistake which Johnson did.

“ But aside from this error, it seems to us that the plaintiff did not meet the obligation resting upon her of presenting a case from which the jury could fairly find that her intestate was free from any negligence which contributed to Ms death. Of course the jury had a right to consider that the intestate was not here to explain the circumstances, and to make the most favorable inferences which the evidence permitted, and such inferences also from obscure and doubtful circumstances relating to his conduct, which the jury might not be inclined to draw if fuller explanation was jiossible. But admitting this, it remains as an incontrovertible fact, founded upon written evidence in connection with admitted circumstances, that the deceased was brought into the peril which caused his death in part by his disregard of the written rules of the company, with which he was acquainted and wlfich, if they had been observed by him, would have resulted in his stop23ing his train at Retersburgli Junction, and so have avoided the collision.”

After a review of the evidence, the court continues as follows:

“ It seems to us impossible to say that the violation of the rule by Sutherland did not contribute to the accident. The rules are made as well to promote the business of the road as for the safety of employes. A train dispatcher at a distant *740point must, to a considerable extent, rely upon the rules being observed by trainmen, and his actions are naturally influenced by this assumption, and so it was in the present case, although the jury might say that his full duty was not discharged. It cannot be supposed that Sutherland was ignorant of the importance of observing the rules. He unfortunately rushed on to his destruction because he saw no red flag at the junction, not bearing in mind that in running at such a rate of speed he was violating a rule and bringing'himself within the peril which resulted in his death. It seems to us that, upon the evidence, the co-operating negligence of “the deceased was an inference of law, and that the judgment should, therefore, be reversed and a new trial granted.”

John H. Peck for appellant. Gha/rles P. Patterson for respondent. Per Curiam

opinion for reversal and new trial.

All concur.

Judgment reversed.