Cumming v. Brooklyn City R. Co.

• Citation: 104 N.Y. 669,10 N.E. 855
• Parties: CUMMING, by Guardian, etc., v. BROOKLYN CITY R. Co.
• Decision Date: 08 February 1887
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 669

10 N.E. 855

CUMMING, by Guardian, etc.,

v.BROOKLYN CITY R. Co.¹

Court of Appeals of New York.

February 8, 1887.

Action for damages. Plaintiff had judgment below.

Nathaniel C. Moak, for appellant.

B. F. Tracy, for respondent.

PECKHAM, J.

The defendant operates a railroad from the city of Brooklyn to Fort Hamilton, and runs its cars by means of a dummy engine. Its tracks are laid through Third avenue, which runs about north and south where it crosses Thirty-ninth street at right angles. There was enough proved to make it proper to submit to the jury the question of the negligence of the defendant. The injury occurred on the tenth of Septembe, 1883, in the afternoon. Evidence was given that one train of two cars drawn by a dummy had come up on the east track on its way to Brooklyn, and had stopped at Thirty-ninth street for a moment or two, the dummy reaching somewhat beyond the north crossing of the street, while the rear end of the rear car was still some 17 or 18 feet south of the south cross-walk; thus totally obstructing the passage on both cross-walks at Thirty-ninth street. The plaintiff was standing on the curb-stone near the south-east corner of the avenue and the street, waiting for the train to proceed on its way to Brooklyn; and just about the time the train started she left the sidewalk, and commenced to cross the street towards the west, and arrived at where the up train was passing at about the time the rear end of the second car was passing over the crossing, so that she left the north flag-stone of the cross-walk, and stepped to the south one, and passed to the rear of the car, and went towards the west or down track, and just as she stepped towards it she was struck by the dummy, drawing a train coming from Brooklyn, and which she could not see until she stepped from behind the train going to Brooklyn. There was an ordinance of the city put in evidence which provided that ‘cars stopping at a street intersection shall stop at the further walk thereof, so that the cars shall not when stopped interfere with the travel on the cross-streets.’ The train from the north came down, making no noise by either bell or whistle, and was going very slowly in order to stop at the Thirty-ninth street crossing. The crossing at this place was very much used, there being perhaps no other street along the route as much occupied as that. To stop its cars so as to wholly obstruct the street, the effect of which was to prevent persons in the situation of the plaintiff from seeing any train coming from Brooklyn until the same was actually upon them, was certainly a fact proper to be submitted to a jury upon the question of whether the defendant was guilty of negligence in the running or management of its trains.

The defendant claimed that the mother of the plaintiff was guilty of neg ligence in permitting the child to be at large, and that, as the child was but five years of age, and non sui juris, this negligence of the mother was imputable to the child, and she could not, therefore, recover. To rebut this claim of negligence, the plaintiff proved that the mother was unable to hire any servant or person to aid her in looking after the child, and hence it was claimed that, as negligence is to be proved or disproved from all the surrounding circumstances, this evidence of inability was proper. We are not prepared to sustain the correctness of the ruling which admitted this evidence; but it was addressed to the point of showing that the mother was not under the circumstances guilty of negligence, and such fact is entirely immaterial if the child herself was guilty of none. Ihl v. Railroad, 47 N. Y. 317. No facts were proved which showed any negligence on the part of the plaintiff. She was on a public street, and about to cross it, and waited for one train to pass the cross-walk on which she was. The street was a crowded one, and she naturally desired to get across it as soon as she reasonably could, and thus get out of danger from the carts, wagons, and other vehicles in such street. As the car reaches her cross-walk she steps from one stone to the other, and passes to the rear, for the purpose of crossing, and is struck by the other dummy before she has even got upon the track. In all this she acted as any one might who was taking ordinary care, and who was desirous of getting across a crowded street over a somewhat dangerous crossing as soon as conveniently it could be done.

The greatest difficulty in the plaintiff's case lies in the charge of the learned judge. He said to the jury that, if they found defendant ‘omitted precautions which they should have adopted in order to prevent injury to people...