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

• Citation: 18 N.E. 648,111 N.Y. 199
• Parties: HOAG v. NEW YORK CENT. & H. R. R. CO.
• Decision Date: 27 November 1888
• Court: New York Court of Appeals

111 N.Y. 199

18 N.E. 648

HOAG

v.NEW YORK CENT. & H. R. R. CO.¹

Court of Appeals of New York.

November 27, 1888.

Appeal from supreme court, general term, Third department.

Action by Isabella C. Hoag, as administratrix of Rebecca M. C. Herrick, against the New York Central & Hudson River Railroad Company for damages for the death of plaintiff's intestate. Plaintiff appeals.

C. L. Stedman, for appellant.

Hamilton Harris, for respondent.

FINCH, J.

The husband and wife were both killed by collision with a passenger train while attempting to cross the defendant's track at a crossing known as ‘Fuller's Lane.’ The husband was driving, and his wife-for whose death this action was brought-was riding with him on the way to their home. At this crossing the passenger and freight tracks were 70 feet apart. To the deceased and her husband, who were approaching from the noth, the freight tracks were the first to be crossed. At that crossing, and all the way to the passenger tracks, a train upon them was visible, without anything to obstruct or hinder, for a distance of at least one, and possibly of two, miles. The husband, when approaching the freight tracks, stopped his horse when a hundred or more yards away, and then again within fifteen yards of the crossing, because of the passage of a freight train which obstructed the way. When that had passed, they crossed the freight tracks in its rear, and in an endeavor to cross the passenger tracks were struck by a train, and killed. Nothing is known of the manner of the accident, except that the horse was seen jumping to get across, and did, in fact, escape. On this state of facts, the plaintiff was nonsuited, and that judgment affirmed by the general term. If we assume, for the purposes of the argument, the negligence of the husband, who was driving, yet his negligence cannot be imputed to the wife. Platz v. Cohoes, 26 Hun, 391, affirmed 89 N. Y. 219;Robinson v. Railroad Co., 66 N. Y. 11. The question presented as to her is whether there was any evidence tending to show that she was free from negligence contributing to the injury. The facts and circumstances proven admit of two conflicting inferences, one or the other of which must be true. The deceased and her husband either saw the passenger train approaching as they neared the track, or they did not. If they did not see it, or, at least, the deceased did not see it, she was negligent; for she was bound to look and listen; and the facts show that if she had looked she could have seen and would have seen the approaching train. She had no right because her husband was driving to omit some reasonable and prudent effort to see for herself that the crossing was safe. But the strong probability is that she did see the train, and her husband did also, and that he for some reason undertook to cross in its front, miscalculating, perhaps, its distance and speed,...