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

• Decision Date: 22 April 1890
• Citation: 24 N.E. 449,120 N.Y. 290
• Parties: BRICKELL v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 290

24 N.E. 449

BRICKELL

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York,

Second Division.

April 22, 1890.

This is an appeal from a judgment of the general term, fourth department, affirming a judgment of nonsuit, and dismissal of the complaint.

The action was brought to recover damages alleged to have been sustained by plaintiff from a collision between the wagon in which plaintiff was riding, and the engine hauling a train of the defendant, at a highway crossing of the defendant's road near Palmyra. The plaintiff was riding, and occupying the same seat, with the driver of a single horse, before a buggy wagon, and paid the driver for carrying him a short distance from a station on the Central road to the village of Palmyra. In so doing, it became necessary to cross the track of the West Shore Railroad where the collision occurred. The time was in the early part of the afternoon; and it had been snowing somewhat before, and the wind was blowing while plaintiff was being carried in the buggy, with the top raised and closed except its front, to the crossing. The evidence given by the plaintiff and the driver, together with that given by every other witness sworn in behalf of plaintiff, shows beyond dispute that the West Shore Railroad can be seen for a good distance at many points on the route, and especially at the south end of a bridge which the plaintiff and his driver crossed in reaching the crossing where the collision took place,-a distance of some one or two hundred feet from the bridge; that the plaintiff and the driver made no further effort, after leaving and while passing over the space between the bridge and the crossing, to learn whether a train of cars might be approaching, but drove along at a brisk trot till they got within about 30 years of the crossing, when they or the horse-probably the horse-first heard the sound of the train approaching the crossing. It does not appear what the plaintiff and driver were engaged in, up to this point, from the time of leaving the south end of the bridge.

C. H. Sedgwick, for appellant.

M. M. Waters, for respondent.

POTTER, J., ( after stating the facts as above.)

This evidence indicates to my mind not only a want of that absence or freedom from contributory negligence which is necessary to be shown upon the behalf of the plaintiff in order to sustain a recovery for negligence upon the part of a railroad company, but, clearly and beyond any question, the actual existence of negligence of the driver and of the plaintiff, which contributed to the plaintiff's injury....