Powell v. New York Cent. & H.R.R. Co.

Citation109 N.Y. 613,15 N.E. 891
CourtNew York Court of Appeals
Decision Date20 March 1888
PartiesPOWELL v. NEW YORK CENT. & H. R. R. CO.
OPINION TEXT STARTS HERE

Appeal from general term, supreme court, Fourth department.

Thomas Powell brought suit against the New York Central & Hudson River Railroad Company in the circuit court, Oneida county, to recover damages for injuries received by collision with defendant's train at a railway crossing. The court entered a judgment of nonsuit, which was affirmed at the general term. Plaintiff appeals.

For dissenting opinion, see 16 N.E. 339.

W. T. Dunmore

, for appellant.

Spriggs & Spriggs, for respondent.

PER CURIAM.

The plaintiff was bound to establish own freedom from negligence contributing to the accident causing the injury of which he complains. In this we think he failed, and therefore he was properly nonsuited. According to his own evidence, which was more favorable to him than the evidence of the other witnesses, he approached and crossed the railroad tracks at the rate of about 10 miles per hour, while a strong wind was blowing from the west, and it was snowing very fast, and his opportunity to see and hear was thus considerably interfered with. He knew that he was approaching a place of danger, and that trains were frequently passing at that place. He should have driven slowly and carefully, watching for the approach of trains, vigilantly using his eyes and ears to protect himself from danger. If he had observed these precautions, under the circumstances dictated by ordinary prudence, we think he would have escaped harm. The judgment should therefore be affirmed.

All concur, except DANFORTH, J., who reads for reversal, and ANDREWS, J., concurs. NOTE.

RAILROAD CROSSINGS-DUTY OF TRAVELER TO LOOK AND LISTEN. It is the duty of a person about to cross a railroad track to make a vigilant use of his senses, as far as there is an opportunity, in order to ascertain if there is a present danger in crossing. Railway Co. v. Adams, (Kan.) 6 Pac. Rep. 529;Starry v. Railroad Co., (Iowa,) 1 N. W. Rep. 605;Abbott v. Railway Co., (Minn.) 16 N. W. Rep. 266;Clark v. Railway Co., (Kan.) 11 Pac. Rep. 134; Railroad Co. v. Davis, (Kan.) 16 Pac. Rep. 78;Donohue v. Railway Co., (Mo.) 2 S. W. Rep. 424;Mynning v. Railroad Co., (Mich.) 31 N. W. Rep. 147;Harris v. Railway Co., (Minn.) 33 N. W. Rep. 12; Pennsylvania Co. v. Marshall, (Ill.) 10 N. E. Rep. 220; Glascock v. Railroad Co., (Cal.) 14 Pac. Rep. 518; Young v. Railway Co., (N. Y.) 14 N. E. Rep. 434. A failure to listen or look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding the negligence of the railroad company, in failing to give signal, contributed to the injury. Railway Co. v. Adams, (Kan.) supra; Schofield v. Railway Co., 8 Fed. Rep. 488; Holland v. Railroad Co., 18 Fed. Rep. 243; Mynning v. Railroad Co., supra. The diligence required of the traveler in ascertaining the approach of a train to a highway crossing must be greater accordingly as the peculiar locality and the circumstances of the case seem to require greater caution. Morris v. Railroad Co., 26 Fed. Rep. 22. The fact that the approach of a railroad to a highway is obstructed from view imposes upon travelers by the highway special care to avoid collisions. Haas v. Railroad Co., (Mich.) 11 N. W. Rep. 216;Schaefert v. Railway Co., (Iowa,) 17 N. W. Rep. 893;Burns v. Rolling-Mill Co., (Wis.) 19 N. W. Rep. 380; Pence v. Railroad Co., (Iowa,) Id. 785. Where a crossing is particularly dangerous, and requires extraordinary effort to ascertain whether it is safe to attempt to cross, one familiar with the locality and the danger surrounding it must use care proportioned to the probable danger. Railroad Co. v. Butler, (Ind.) 2 N. E. Rep. 138; Merkle v. Railroad Co., (N. J.) 9 Atl. Rep. 680;Seefeld v. Railway Co., (Wis.) 35 N. W. Rep. 278. Where the driver of a team brought his horses to a walk, but did not stop and leave his wagon, and go forward where he could see a train obstructed by cars standing on a side...

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4 cases
  • Elliott v. Chicago & Alton Ry. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • March 29, 1904
    ...85 Mo. 235; Weller v. Railroad, 120 Mo. 649; Moberly v. Railroad, 17 Mo.App. 543; Damrill v. Railroad, 27 Mo.App. 205; Powell v. Railroad, 109 N.Y. 613, 15 N.E. 891; Schmolze v. Railroad, 83 Wis. 659, 53 N.W. Ashworth v. Railroad, 97 Ga. 306, 23 S.E. 86; Railroad v. Crisman, 19 Col. 30, 34 ......
  • Evans v. Zimmer
    • United States
    • United States State Supreme Court (New York)
    • July 22, 1961
    ...307, 42 N.Y.S.2d 55; Pfohl v. State, Ct.Cl., 42 N.Y.S.2d 372; Mosher v. State, 204 Misc. 580, 124 N.Y.S.2d 223; Powell v. New York Cent. & H. R. R. Co., 109 N.Y. 613, 15 N.E. 891. The plaintiff relies on Agren v. Keller, 9 A.D.2d 1000, 194 N.Y.S.2d 857, and Schuler v. Newhoff, 276 App.Div. ......
  • Zapp v. Miller
    • United States
    • New York Court of Appeals
    • March 20, 1888
    ...109 N.Y. 5115 N.E. 889ZAPPv.MILLER.1Court of Appeals of New York.March 20, 1888.         Appeal from general term, supreme ......
  • Powell v. New Yor Cent. & H.R.R. Co.
    • United States
    • New York Court of Appeals
    • March 20, 1888
    ...339POWELLv.NEW YORK CENT. & H. R. R. Co.Court of Appeals of New York.March 20, 1888. OPINION TEXT STARTS HERE For majority opinion, see 15 N.E. 891.DANFORTH, J., ( dissenting.) I cannot concur in the decision about to be rendered in this case. The question is, was there any evidence which s......

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