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

• Decision Date: 13 January 1891
• Citation: 125 N.Y. 715,26 N.E. 266
• Parties: NASH v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 715

26 N.E. 266

NASH

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

Court of Appeals of New York.

Jan. 13, 1891.

Appeal from supreme court, general term, second department.

RUGER, C. J., and ANDREWS, J., dissenting.

Calvin Frost, for appellant.

Clarence R. Conger, for respondent.

EARL, J.

On the 2d day of October, 1886, the plaintiff and his wife were in a wagon drawn by two horses, passing over the defendant's railroad in Rockland county, and an engine drawing a train of passenger cars came in collision with the horses and wagon, killing his wife and horses, demolishing the wagon, and seriously injuring him. This action was brought to recover damages for his injuries and the destruction of his property. Upon the first trial he was nonsuited, and upon appeal by him to the general term he obtained a new trial. Upon the new trial he recovered a judgment, which has been affirmed at the general term.

The sole negligence alleged against the defendant is the omission of its agents having charge of the engine to ring the bell or blow the whistle as they approached the crossing. There appears to have been a great preponderance of evidence to show that the bell was rung and the whistle blown. But there was some evidence tending to show that these signals were not given, and hence we cannot say that the question of the defendant's negligence should not have been submitted to the jury.

But we think the undisputed evidence shows negligence on the part of the plaintiff, and that his complaint should therefore have been dismissed. At the place of the accident the railroad runs north and south. The plaintiff lived on the east side of the road, several hundred feet therefrom, and was perfectly familiar with the road and the running of its trains. There was a private lane from his residence across the railroad to the highway on the west side thereof. The defendant owned a strip of land 79 feet wide on the easterly side of its road, and on the easterly side of the land there was a fence, and in the line of the fence there was a gate across the plaintiff's lane. He drove to this gate in the afternoon of a clear day, and his son opened the gate, and he drove through it down the lane on a walk, until he reached level ground, 35 feet from the easterly track of the railroad, and then he permitted his horses to trot to and upon the railroad track until the engine approaching from the south struck the fore part of the wagon and the hind part of the horses. The...