161 N.Y. 222, Beecher v. Long Island R. Co.
|Citation:||161 N.Y. 222|
|Party Name:||ANNA M. BEECHER, as Sole Executrix of CHARLES L. C. BEECHER, Deceased, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.|
|Case Date:||January 09, 1900|
|Court:||New York Court of Appeals|
Argued December 11, 1899.
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William J. Kelly for appellant. The plaintiff failed to show that deceased was free from negligence. On the contrary, the evidence affirmatively showed his contributory negligence. (Riester v. N.Y. C. & H. R. R. R. Co., 16 A.D. 216; Doyle v. A. Ry., 5 A.D. 601; Gonzales v. N. Y. & H. R. R. Co.,
Augustus N. Weller for respondent. The sole question here is, can the court say, as a matter of law, that the plaintiff was guilty of contributory negligence? Under the circumstances, the question of plaintiff's contributory negligence was one of fact for the jury to determine, and not for the court. (Terry v. Jewett, 78 N.Y. 338; Warfield v. N.Y. L. E. & W. R. R. Co., 8 A.D. 479; Brassell v. N.Y. C. & H. R. R. R. Co., 84 N.Y. 241; Lent v. N.Y. C. & H. R. R. R. Co., 120 N.Y. 467; Bucher v. N.Y. C. & H. R. R. R. Co., 98 N.Y. 128; Jewell v. N.Y. C. & H. R. R. R. Co., 27 A.D. 500; Sherry v. N.Y. C. & H. R. R. R. Co., 104 N.Y. 652; Parsons v. N.Y. C. & H. R. R. R. Co., 113 N.Y. 355.)
PARKER, Ch. J.
The plaintiff's testator having neither looked nor listened as the train approached which caused his death, the query is whether the court must say that his negligence contributed to the result, or the jury may say that it did not.
The jury were at liberty to find from the evidence before it that the defendant had started the train on the south track substantially every morning for many years, and that during all that period of time, upon the announcement by the doorman of 'the rapid transit for Brooklyn, ' the people were accustomed to rush out of the station, over the station platform to the north tracks, then across them to and upon the platform, in readiness to board the train as soon as it came to a stop; and that this custom had been so long continued that such an announcement by the doorman on the morning in question, constituted an invitation to every passenger there, including the plaintiff's testator, to pass out of the station, across the station...
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