44 N.Y.S. 820 | N.Y. App. Div. | 1897
The injury which is the cause of this action was received by plaintiff’s intestate at a crossing of defendant’s railroad on Enfield street at its junction with Atlantic avenue in the city of Brooklyn. The track of the railroad at this point is straight, nearjy or quite
' No question of contributory negligence upon the part of plaintiff’s intestate enters into the cáse, and, as to the brewery company, a recovery of some damages should be upheld. ' ■
Upon the question of the negligence of the railroad company, a different question is presented. It is quite evident as to it that the mind of the learned trial judge wavered in the balance respecting' its liability for the accident and consequent injury. There was some contention made upon the trial, and the point is now urged upon our consideration, that negligence of the railroad company could be- predicated upon a defect in the crossing. But we agree with the learned court below that the evidence was- insufficient for that purpose. The claim is that the plank which formed the approach to this crossing was raised above the surface of the ground about the thickness of the plank itself, and that the right hind wheel of the wagon caught upon it. One witness makes this statement, and he did not notice it until the morning after-the accident. The soil at this place is composed of loose sand. The planks themselves were firmly set, were solid and in good condition. The rise in the plank above the surface of the soil was slight, and we think that the fact that the soil did not come up even with the plank, the distance being so slight, was. not such a defect in the approach to the crossing that negligence can be predicated upon it or that the defendant owed any further duty in this regard to persons making use of the crossing, or others. Extraordinary care would hardly suffice to° keep the surface of the ground even with the plank, and ceaseless-vigilance in precaution could scarcely foresee that an accident would happen from.such a cause.
Upon the question of the railroad defendant’s negligence, the-learned court below submitted but two considerations upon which it could be based, and these were whether the flagman was on duty at the time when the truck reached the crossing and' started to pass: over: If he was absent, did such absence contribute to the injury ?. Upon both of these propositions the plaintiff held the affirmative, and was bound to establish the same by a fair preponderance of' testimony. We are now1 to see if this submission
As to the testimony of Kreig, we think that it is fairly overcome by the testimony of the'other witnesses in the case, and that to give force to it is to disregard the overwhelming weight of the testimony. We are, therefore, of opinion- that the court erred in submitting the question of the negligence of the railroad company to the jury. Its motion for the direction of a verdict, made at the close of the case, should have been granted. There is strong reason for saying that, even though' the flagman was absent from the crossing, still, that such absence was not a proximate cause of the accident. But we rest our decision upon the other ground, as above stated, and do not find it now necessary to express an opinion upon the latter subject.
But while we reach the conclusion that a cause of action was made out against the brewing company, we also reach the conclusion that the damages awarded are excessive. Deceased was fifty-three years of age, in good health, and received as wages two dollars and fifty cents a day. If he earned at this rate for each working day in the year he would earn $780 a year. Taking into consideration his probable duration of life and his ability to earn continuously, which could not increase, but would certainly diminish, the sum which his family would receive as a result of' his earnings after the cost of his' own living was deducted, and we can readily see that the pecuniary loss to the next of kin is more than covered by the sum which is
Tlie judgment should, therefore, be that as to the brewing company the judgment is' reversed unless plaintiff stipulates within twenty days to reduce the recovery to the sum of $7,500, together with a proportionate . amount of the extra allowance, and, if plaintiff so stipulates, the judgment as modified is affirmed, with costs. As to the defendant, the Long Island Railroad Company, the judgment should be reversed and a new trial granted, costs to abide the event.
All concurred, except Bartlett, J., who dissented as to reduction only.
Judgment and order reversed, a new trial granted, costs to abide the event as to the defendant, the Long Island Railroad Company, and as to the defendant, the New York and Brooklyn Brewing Company, judgment and order reversed and new trial granted, costs to abide the event, unless, within twenty days, plaintiff stipulates to reduce the recovery to $7,500 and interest and extra allowance proportionally, in which case the judgment as reduced is unanimously affirmed as to said defendant, without costs.