Swift v. Staten Island R. T. R. Co.

• Decision Date: 21 October 1890
• Citation: 25 N.E. 378,123 N.Y. 645
• Parties: SWIFT v. STATEN ISLAND R. T. R. CO.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 645

25 N.E. 378

SWIFT

v.STATEN ISLAND R. T. R. CO.

Court of Appeals of New York.

Oct. 21, 1890.

Appeal from supreme court, general term, second department.

PECKHAM and GRAY, JJ., dissenting. Affirming 5 N. Y. Supp. 316.

W. W. MacFarland, for appellant.

James C. Foley, for respondent.

O'BRIEN, J.

The plaintiff's daughter, a girl then 15 years old, was quite seriously injured by one of the defendant's trains at or near the station in the village of New Brighton, on the 4th of July, 1887. For the expenses incident to her care and attendance during her illness, and the loss of her services, the father recovered a verdict of $575, and the general term has affirmed the judgment entered thereon. There are two questions to be considered upon this appeal: First, whether there is any evidence in the record that warranted the jury in finding that the injury to the girl was caused by negligence or want of proper care on the part of the defendant; and, if so, then, secondly, whether she was herself guilty of negligence contributing to the injury. At the place where the accident occurred, the defendant's double track road runs east and west, just in the rear of a cluster of houses, in one of which the girl's sister and her husband lived. This house was situated within a few feet of the south track, and separated therefrom by a board fence six feet high, in which was a door that swung to the west, and through which the inmates of the house passed out, and crossed the track to deposit ashes and garbage in barrels, kept on the north side of the track, and also to reach the highway, ferry, and store beyond. These houses were mostly built before the railroad, which, when constructed, separated them from the road on the north. There was a board or plank walk leading from near the rear of these houses on the south across the railroad, upon which the people occupying the houses and others, had, for many years, to the knowledge of the defendant, passed when depositing the ashes and garbage in the barrels north of the track, and also in order to reach the road, ferry, and store on that side. Though not a public sidewalk or highway, it had practically been used as such for a long time by numerous persons living south of the track for the purpose of crossing to the north with the knowledge and permission of the defendant. Two days before the accident, the girl arrived at her sister's house for the first time, her home being in Canada. She was therefore practically a stranger to the place, and, so far as appears, ignorant of the dangers incident to that locality. On the morning of the accident, she was requested by her sister to take a pail of ashes and garbage from the house across the track to the barrel on the north side. The sister pointed out to her the path leading across the track, and the barrel beyond, warning her to be careful of the trains passing on the railroad. The girl says that the took the pail in both hands, passed out through the door in the rear of the house, through the door, or gate, in the high fence, and when stepping upon the south track she looked both east and west on the railroad track. There was no train to be seen coming from the west, but the train from the east had arrived at the station some distance east of the house and was starting west. The girl stepped upon the southerly track, waited there a short time for the train from the east to pass by, and then started to cross the north track, when she was struck by the train from the west, and sustained the injuries complained of. The train was running, according to the testimony of defendant's witnesses, at the rate of 12 to 15 miles an hour, and, according to some of the plaintiff's witnesses, as fast as 25 miles an hour The girl testified, as already observed, that just as she stepped upon the south track she looked towards the west, and there was no train then in sight. The engineer of the train from the west could have seen the girl after she stepped on the track, and after it had passed the curve at the plaster mill, a distance of 900 feet west of the point where the accident occurred; and, if the girl's statement is correct that when she went upon...