Heaney v. Long Island R. Co.

• Decision Date: 15 January 1889
• Citation: 19 N.E. 422,112 N.Y. 122
• Parties: HEANEY v. LONG ISLAND R. CO.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 122

19 N.E. 422

HEANEY

v.LONG ISLAND R. CO.

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, Second department.

Action by Rose Heaney, as administratrix, to recover damages for the death of her husband, who was killed by one of defendant's engines while attempting to cross defendant's track. From the judgment entered for plaintiff, and affirmed by the general term, defendant appeals.

DANFORTH, J., dissenting.

E. B. Hinsdale, for appellant.

Horace Graves, for respondent.

GRAY, J.

At the close of the plaintiff's case the defendant's counsel moved for a dismissal of the complaint, on the ground that the plaintiff had failed to show negligence on the part of the defendant, and that the evidence proved that the deceased had by his negligence contributed to the accident. This motion was denied by the court, and at the close of the whole case the motion for a nonsuit was denied. On appeal, the judgment entered for the plaintiff on the verdict of the jury, and the order denying a new trial, were affirmed.

We are unable to discover from the evidence that the plaintiff either established her right to recover against the defendant for the death of the intestate, or that there is sufficient proof in the case to sustain a recovery, and we think the denial of the motions was error for which this judgment must be reversed. A brief review of the facts will make this conclusion sufficiently clear. The accident occurred at a point on Atlantic avenue, in the city of Brooklyn,-a street which, for some distance there, runs in a straight line east and west. An opening in the fences of the defendant, which border its tracks on either side, permits crossing by persons on foot. At this point the avenue is 100 feet in width. The deceased left his house, which was on Atlantic avenue, about 6 o'clock in the morning, in the month of May, and started to cross the defendant's tracks at that point of crossing. The morning was, according to plaintiff's evidence, cloudy and rainy or drizzly. A train had just passed on the south track, which was nearest to the deceased as he went through the fence, and the smoke from its engine appears to have settled down behind it upon the road, sufficiently to temporarily obscure objects in the line of vision. The deceased, however, appears to have gone ahead, and, while upon the north track, was struck by a west-bound train, and killed. He was about 66 years of age, and his hearing was somewhat impaired. Whether the engineer sounded the whistle or rang the bell is a fact in dispute; but it is not one material to be considered, as there was no statutory obligation resting upon the defendant to give notice in either way, while operating its road at that point. It was not legally required to give such notice by any statute; nor did any ordinance demand it. By chapter 187, Laws 1876, the defendant was authorized to operate its railroad on Atlantic avenue, subject to such rules and regulations as to rate of speed and public safety as the common council should prescribe. That municipal body directed the construction of the fence on either side of the defendant's tracks, with openings and crossings at every street, and spaces at intervals of not exceeding 250 feet, to allow the crossing of persons on foot. They prescribed it as a duty of the company to station a flag-man at certain points, of which the point in question is not one; and they authorized the defendant, after compliance with these precautionary provisions, to run at any rate of speed. The defendant in this case seems to have violated no duty to the public, based on the existence of any rules or regulations, in not having any flagman at the crossing; or in not causing notice to be given of the approach of its trains; or in running at the rate of speed testified to as being 20 miles an hour. If, then, not liable to the charge of negligence on such grounds, on what ground can it be deemed to have been in anywise derelict? The general term do not point to any act of omission or of commission by the defendant, from which negligence and a consequent liability might be inferable; but they say only that they think ‘it was a question of fact for the jury to determine whether, under the circumstances of the case, the company exercised reasonable care and prudence in what they did, and whether its neglect caused the injury complained of.’ This seems somewhat obscure as a reasoning upon the case, in the absence of some positive facts constituting or tending to prove neglect or heedlessness on the part of the defendant. While it is perfectly true that negligence may be made out from...