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

Decision Date23 November 1897
Citation154 N.Y. 263,48 N.E. 514
CourtNew York Court of Appeals Court of Appeals
PartiesFITZGERALD v. NEW YORK CENT. & H. R. R. CO.

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, Fourth department.

Action by John Fitzgerald, as administrator, against the New York Central & Hudson River Railroad Company. From judgment of the general term affirming judgment entered on the verdict of a jury, defendant appeals. Reversed.

See, also, 12 N. Y. Supp. 932, 59 Hun, 225, and 34 N. Y. Supp. 824, 88 Hun, 359.

Cyrus D. Prescott, for appellant.

Hadley Jones, for respondent.

VANN, J.

This action was brought by an administrator to recover damages resulting, as alleged, from the negligence of the defendant in failing to provide the warning signals required by statute to protect ‘employés on top of cars from injury’ by low bridges overhanging railroad tracks. Laws 1884, c. 439, § 2. The accident is alleged to have occurred at Wheeler's bridge, which passes over the tracks of the defendant about three miles west of Rome. The distance from the top of the rail to the bottom of the bridge was, until a recent change, about seventeen feet, while the height of ordinary treight cars is ten feet and nine inches, and of refrigerator cars twelve feet and five inches. On the 11th of November, 1887, the plaintiff's intestate was acting as head brakeman on a freight train composed of 29 refrigerator and 3 ordinary freight cars. It was his first trip as brakeman, and he had passed but once before under Wheeler's bridge, which had no warning signals on either side to notify trainmen of danger. The rules of the defendant required conductors to see that the men employed upon trains were at their posts upon descending grades, and not to allow their trains to acquire a greater speed than one mile in four minutes; and it was the duty of the head brakeman to keep watch on the train so as to see that it did not break apart. As the train approached Wheeler's bridge from the west on a grade descending to the east, running at the rate of 20 miles an hour, on a dark, stormy morning, the intestate, no signal for brakes having been given, left the cab, without taking his lantern, and climbed upon the top of the car next to the engine. He was seen standing upon that car shortly before the train passed under the bridge, and immediately thereafter he was found lying on top of the same car, very near the center, insensible; and in a short time he died. No evidence was given as to the cause of death, other than the facts already stated; and when the plaintiff rested, as well as at the close of the evidence, the defendant moved for a nonsuit upon the ground, among others, that the evidence failed to show that the death of the intestate was caused by the negligence of the defendant. The motion was denied, the defendant excepted, and now urges the failure of the plaintiff to connect the death of the decedent with the omission to erect warning signals as the main ground for asking a new trial.

In an action to recover damages for negligence the burden is upon the plaintiff to establish by a fair preponderance of evidence every fact that is essential to his cause of action. It is not enough to show that the defendant was negligent and that the...

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3 cases
  • Deschenes v. Concord & M. R. R
    • United States
    • Supreme Court of New Hampshire
    • March 11, 1898
    ...or act contributed so proximately to the injury that without its agency the accident would not have happened." Fitzgerald v. Railroad Co., 154 N. Y. 263, 266, 48 N. E. 514. "The law of evidence requires an open, visible connection between the principal and evidentiary facts and the deductio......
  • Schafer v. Mayor, Etc., of City of New York
    • United States
    • New York Court of Appeals
    • December 7, 1897
    ...dead, less evidence is required of his personal representative. Rodrian v. Railroad Co., 125 N. Y. 526, 26 N. E. 741;Fitzgerald v. Railroad Co., 154 N. Y. 263, 48 N. E. 514. The plaintiff's intestate was bound to exercise reasonable care; but if, owing to the circumstances, the evidence of ......
  • In re Warde
    • United States
    • New York Court of Appeals
    • November 23, 1897
    ...154 N.Y. 34248 N.E. 513In re WARDE.Court of Appeals of New York.Nov. 23, 1897.         Application by W. Hampton Warde for ......

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