Rodrian v. New York, N.H.&H.R. Co.

• Decision Date: 24 February 1891
• Citation: 125 N.Y. 526,26 N.E. 741
• Parties: RODRIAN v. NEW YORK, N. H. & H. R. CO.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 526

26 N.E. 741

RODRIAN

v.NEW YORK, N. H. & H. R. CO.

Court of Appeals of New York.

Feb. 24, 1891.

Appeal from supreme court, general term, first department.

Henry W. Taft, for appellant.

Arthur T. Hoffman, for respondent.

ANDREWS, J.

It has, in view of the decisions in this state upon the subject, become a postulate that due care requires a pedestrian, before crossing a railroad track, to look in each direction to ascertain whether a train is approaching, and that the mere omission of the statutory signals by the trainmen does not relieve the pedestrian from the imputation of negligence if he fails on his part to look and listen. He cannot omit such a reasonable precaution in reliance upon the performance by the railroad company of its obligation to give reasonable notice of the approach of the train. Whether the duty imposed upon the traveler has been discharged may be, and often is, a question involved in doubt. The evidence may justify opposing inferences. In such case the question is for the jury. There is another rule equally well established in this state that the plaintiff in an accident case assumes the burden of showing that the injury occurred without fault on the part of the person injured, or of giving evidence from which the jury may infer that he was without fault, and that his act did not contribute to the casualty. If, in case of an accident at a crossing, it appears that the person injured did look for an approaching train, it would not necessarily follow as a rule of law that he was remediless, because he did not look at the precise place and time when and where looking would have been of the most advantage. Many circumstances might be shown which could properly be considered by the jury in determining whether he exercised due and reasonable care in making his observation. The presence of other and imminent dangers, the raising of gates erected by the company to guard the highway, giving assurance that the crossing was safe,-these and similar circumstances appearing, they might be considered in determining whether the person injured, who did in fact look and listen before attempting to cross the track, fairly discharged the duty imposed upon him, although it should appear that if he had looked at another instant of time, or had looked last in the direction from which the train was approaching, he would have seen it. In case of a death accident at a railroad crossing it must often happen that the...