45 Barb. 299 | N.Y. Sup. Ct. | 1866
There was no request by the defendant’s counsel to have the plaintiff nonsuited, or to have
Two or three points of difference between the requests of the defendant’s counsel and the charge should, --however, be noticed. The court was requested to charge that the rights of a citizen to the highway, at & railroad crossing, are subservient to the rights of the corporation. The Judge refused so to charge, and to this refusal there was an exception. In point of law the J udge was clearly right. The corporation, by acquiring the right to construct its road, and acquiring title to the land for its road bed, for that purpose, does not destroy or impair the public easement. The perfect and unqualified right of every citizen to pass over the road at that point remains the same as before. It is not a question of superior, or subordinate right, in passing, which arises in a case of this kind, but a question merely of the exercise of suitable caution, and prudence, by either party in .the exercise of a common arid equal right. This proposition of the defendant’s counsel seems to pervade all. the requests to charge, and all the exceptions to the charge as made, on the subject of the care and prudence required of the defendant in crossing highways, the court holding that the corporation was bound to exercise a proper degree of care and prudence toward the trav
The court also charged that the corporation was under no legal obligation to keep a flagman at a road crossing; but further instructed the jury, that if it had been for a long time accustomed to keep a flagman there, and the public were accustomed to see him there, they would have the right to suppose that no trains were coming when he was not out. This latter portion was excepted to. Taking this in connection with what had been charged previously, it was entirely proper. The whole question of the plaintiff’s negligence had been fully submitted and the jury had been expressly instructed, that if the injury resulted from his own negligence, in any respect, he could not recover. There can be no doubt that the proposition was true, that when the defendant had for a series of years kept a flagman at a particular point, for the purpose of giving notice of the approach of trains, and the public had been accustomed to see him there uniformly, giving warning by signals, or otherwise, whenever trains were due and approaching, they might naturally suppose, and indeed would have the right to suppose, that no train was due or approaching, if the flagman was absent from his post. Indeed it appears by the evidence that the plaintiff, on the occasion, remarked upon the absence of the flagman as evidence that' no train was then due. If this was a place of danger, so much so that the defendant had voluntarily undertaken the duty of keeping a watchman there, and continued it through a series of years till the public had become accustomed to regard his presence, or absence, as one of the evidences of the approach of trains, or otherwise, it was undoubtedly a part of such duty to keep a fit person, whose conduct would not be liable to mislead and deceive the traveling public. An unfaithful, incompetent, or intemperate
The order refusing a new trial should therefore be affirmed.
Welles, E. Darwin Smith and Johnson, Justices.]