Greany v. Long Island R. Co.

Citation5 N.E. 425,101 N.Y. 419
PartiesGREANY v. LONG ISLAND R. CO.
Decision Date02 March 1886
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from order general term, Second department, affirming judgment of supreme court, for plaintiff.

RUGER, C. J., EARL and FINCH. JJ., dissenting.

Mr. Sprague, for appellant.

Mr. Fleming, for respondent.

DANFORTH, J.

The appellant concedes there was evidence on which the jury might find negligence upon its part, but contends (1) that a certain negative evidence from persons who did not affirmatively appear to have been ‘looking, watching, or listening for the ringing of a bell or sounding of a whistle,’ was improperly received to prove that those signals were not given; and (2) that the plaintiff should have been non-suited on the ground of her contributory negligence.

As to the first. It is apparent that the best evidence of the fact in dispute would be the testimony of those persons who, on the particular occasion in question, had the custody or management of the bell or whistle. They were, however, in the employ of the defendant,-themselves interested in establishing the fact that the proper signals were given by those instruments,-and the law does not require the adverse party to put his case in the hands of persons having such relations to the transaction. Besides those persons, all others must give evidence secondary in character. One person might be watching the bell-looking at it, or listening for its sound. The value of his testimony would depend upon his nearness to the machine, the accuracy of his sense of sight or hearing, the existence or force or direction of the wind, and other causes. Another person might be neither looking nor listening, and yet his position be such, and the circumstances about them so favorable, that his testimony would be of equal or greater persuasive power than that of the other. A jury must ascertain. An appellate court cannot say that the testimony of either should be rejected. Nor should a trial judge be required to determine its weight, or the fact which it did or did not ascertain, if it has any legal effect. No error, therefore, was committed in allowing the witnesses K., T., and R. to testify. They were passengers upon the train causing the injury; were in such position that it would not have been impossible for them to have heard the signal if it had been given. There was also abundant evidence from persons whose attention was directed to the train to justify a finding that the statutory signals were not given; and the whole was submitted to the jury, not only in a manner to which no exception was taken, but upon this point in the very language suggested by the learned counsel for the defendant, adapted to the occasion from the Culhane Case, 60 N. Y. 133, upon which, without proper foundation, he then relied and now cites. It cannot be so extended as to justify the exclusion of evidence.

As to the second point. It would have been error for the court to grant the nonsuit if, by any allowable deduction from the facts proved, a cause of action might be sustained by the plaintiff, and when such ruling has been made by reason of the contributory negligence of the person injured, it appeared that such negligence was conclusively established by evidence which left nothing, either of inference or of fact, in doubt or to be settled by a jury. Massoth's Case, 64 N. Y. 529.

In Kellogg's Case, 79 N. Y. 73, there was under review a nonsuit directed upon this ground by the general term, and we readily granted a new trial upon the application of principles then declared to have been frequently laid down, and which must now govern. In that case the only negligence of the defendant was the omission to give a signal of the approaching train. The plaintiff came upon the crossing, and was struck. A moment before he was seen looking to the north, and it was claimed that he ought to have looked also towards the south, and that if he had he would have escaped harm, and it was also claimed that if he had listened he would have heard the approaching train. Referring to the situation of the man and his surroundings, the court (EARL, J.) says:

‘Whether, under such circumstances, by the exercise of ordinary prudence, he did or could have heard, was a question, upon all the facts proved, for the jury. It is unquestionably true that the deceased was bound to exercise his sight to avoid danger at the crossing. He was not bound to the greatest diligence which he could have exercised in that way; but he was bound to exercise such care as a prudent man, approaching such a place, would ordinarily exercise for the protection of his life. Did he exercise such care? Or, in other words, was there an entire absence of evidence that he did? * * * We cannot say that at that particular time he should have looked toward the south. It was for the jury to determine whether he exercised that care which the law required of him. He could probably have avoided the accident by stopping before he passed upon the track. But that is a degree of care not usual even with very prudent persons. It has not been decided by the courts of this state that a person approaching a railroad is bound, as matter of law, to stop, to avoid the imputation of negligence.’

And, referring to evidence as to how an approaching train could be seen from various points, the learned judge says:

‘Such evidence is frequently very reliable and satisfactory; but it is not necessarily conclusive. Such experiments are made when the witnesses are claim, and their whole minds, free from any distractions, are intent upon the matter in hand. They cannot be made under the precise circumstances which attended the transaction to be investigated.’

And to the same effect, among recentcases, is Shaw v. Jewett, 86 N. Y. 617, where, in answer to the claim that the trial judge erred in refusing to charge the jury ‘that if they believed that the plaintiff could have seen the train at distance enough from the track to have stopped his horse before reaching the track, his failure to see the train was negligence on his part, and he was not entitled to recover,’ this court held there was no error, saying:

‘That is not the rule. The plaintiff is not bound to see. He is bound to make all reasonable effort to see, that a careful prudent man would make in like circumstances. He is not to provide against any certain result. He is to make an effort for a result that will give safety,-such effort as caution, care, and prudence will dictate.’

I know of no exception to the doctrine that where there is any direct evidence, or inferential, of care or caution on the part of the person...

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  • Coulter v. Great Northern R. Co.
    • United States
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    • June 5, 1896
    ...in taking a case from the jury. Hoye v. Ry. Co., 62 Wis. 666; 19 Am. and Eng. Ry. Cases, 247; Craig v. Ry. Co., 118 Mass. 431; Greany v. Ry. Co., 101 N.Y. 419; 24 and Eng. Ry. Cases, 473; 5 N.E. 425. Failure to look and listen when an approaching train could not be seen is not contributory ......
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    ...he was guilty of contributory negligence. 79 Ark. 138; 20 S.W. 490; Id. 163; 26 S.W. 20; 88 Am. Dec. 353; 18 L. R. A. 60; 9 L. R. A. 521; 101 N.Y. 419; 140 639; 147 Mass, 495; 116 Mass. 540; 4 Am. St. Rep. 364; 105 Ind. 406; 66 F. 502; 63 Wis. 152; 77 Wis. 349; 72 Wis. 523; 56 Mich. 1; 105 ......
  • St. Louis, Iron Mountain & Southern Railway Co. v. Martin
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    • January 18, 1896
    ...did not hear them, and could have heard them had they been given, the question as to whether or not they were given is one for the jury. 101 N.Y. 419; 75 id. 320; 36 id. 132; Wis. 59. Even to concede that the statutory signals were given, they were certainly rendered nugatory and of no avai......
  • Wilkinson v. Oregon Short Line R. Co.
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    • January 12, 1909
    ... ... the railroad company if the traveler was in apparent danger ... So long as the traveler is in a place of safety on the side ... of the track and may remain so by stopping ... under these circumstances, a nonsuit was improperly granted ... The case of Greany v. Long Island Ry. Co. , 101 N.Y ... 419, 5 N.E. 425, is a case where the surrounding conditions ... ...
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