29 N.Y. 383, Newson v. New York Cent. R. Co.

Citation:29 N.Y. 383
Party Name:MARY NEWSON, Administratrix, & c., v. THE NEW YORK CENTRAL RAILROAD COMPANY.
Case Date:March 01, 1864
Court:New York Court of Appeals
 
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Page 383

29 N.Y. 383

MARY NEWSON, Administratrix, & c.,

v.

THE NEW YORK CENTRAL RAILROAD COMPANY.

New York Court of Appeal

March 1, 1864

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Page 388

COUNSEL

S. T. Fairchild, for the appellants.

Benedict and Martindale, for the respondent.

JOHNSON, J.

All the material questions of fact were fully and fairly submitted to the jury upon the trial; and the judgment having been affirmed in the supreme court, the verdict is conclusive here upon all such questions of fact. The judgment must therefore be affirmed, unless there was some error upon the trial, in matter of law. It is claimed on behalf of the defendants that, as matter of law, Newson, the deceased, was guilty of negligence in going after the second load, in view of the undisputed evidence that the defendants were using the track with their locomotives immediately adjoining the place where the deceased was loading his wagon the first time, and that his horses then became frightened; and that the plaintiff should have been non-suited, or a verdict ordered in the defendants' favor.

Page 389

The jury have found, as matter of fact, upon the evidence, that the deceased was not guilty of negligence on his part in going after the second load, notwithstanding the evidence as to what took place when he was taking the first load. In view of all the facts and circumstances of this case, the question of negligence in going after the second load, when the injury happened, was most clearly a question of fact for the jury. Although there is evidence to show that the horses were frightened by the locomotive, when it came along so near to them, as the deceased was taking on his first load, it also appears that the deceased held them readily. It does not appear that they moved at all from the place where they were standing, or became in any degree restive, so as not readily to submit to control. The locomotive passed, and the deceased finished putting on his load, and went away safely without any serious trouble or difficulty. The jury might well say from this evidence that the team was a suitable one to take to such a place, and that there was nothing attending the taking of the first load to lead a person of ordinary prudence to apprehend any danger in...

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