18 N.Y. 422, Steves v. Oswego and Syracuse Railroad Co.

Citation:18 N.Y. 422
Case Date:December 01, 1858
Court:New York Court of Appeals

Page 422

18 N.Y. 422




New York Court of Appeal

December 1, 1858


William Porter, for the appellant.

Thomas L. Davis, for the respondent.

Page 423


The testimony in this case presents an instance of surprising negligence and inattention on the part of the plaintiff. After riding along parallel to and in plain sight of the railroad track for the distance of about a mile, he undertook to cross the track, his horses being upon a walk. The day was cold and the wind blowing fresh from the northwest. He was traveling against the wind. His coat was turned up around his ears and a fur cap drawn down over them. With his hearing thus obstructed, and with abundant opportunity to see and avoid the approaching train, if he would but look, he advanced slowly upon the track. The only witness who saw the occurrence says: "He did not increase his speed; he did not look back when crossing the track, or before; he did not turn his head either way, before or after he got upon the track. " Such negligence--such indifference to danger--is both unaccountable and inexcusable. The cars were passing at the usual time. With his sense of hearing unobstructed, the plaintiff might have heard the train long before it approached the crossing, and in abundant season to avoid even the possibility of danger. If, for his own comfort and to protect himself against the cold, he had chosen in any degree to deprive himself of the ability to hear, he should have used his eyes so much the more. Ordinary regard for his own safety would have prompted him, as he approached the crossing, to see, as he might well have done, whether the cars were not also approaching. It is obvious that a single look would have saved him from the disaster with which he met. One of his own witnesses, who stood forty rods west of the crossing, saw the cars when they were half a mile distant. He says he heard them plain enough, and that they had a bright light. He stood to see them come. That the plaintiff should have entirely omitted to look was the extreme of carelessness. Such carelessness is entirely inconsistent with a right to recover damages founded upon the negligence of the defendants. The plaintiff is himself the author of his own injury.

Page 424

The only delinquency imputed to the defendants, and upon which alone the plaintiff seeks to sustain his...

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