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
“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
opinion for reversal and new trial.
Judgment reversed.