32 N.Y. 333, Stinson v. New York Cent. Railroad Co.

Citation:32 N.Y. 333
Party Name:SARAH A. STINSON, Administratrix, & c., of POPLIN STINSON, Respondent, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.
Case Date:March 01, 1865
Court:New York Court of Appeals
 
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Page 333

32 N.Y. 333

SARAH A. STINSON, Administratrix, & c., of POPLIN STINSON, Respondent,

v.

THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

New York Court of Appeal

March 1, 1865

Page 334

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COUNSEL

A. P. Lanning, for the appellant.

Cyrus E. Daw, for the respondent.

DAVIS, J.

The motion for nonsuit on the ground that deceased came to his death by his own negligence, was properly denied. He was lawfully engaged in loading the car. The contract required him to do this, the defendant furnishing laborers to assist. The engine and train that caused his death were not in sight from the car or freight house where he was at work. The train was not to leave for some hours, and there was nothing to indicate that extraordinary vigilance was demanded at his hands; nor was there any evidence to show any want of ordinary care in the manner in which he performed his work. So far as the evidence on the part of defendant tended to show any negligence by deceased, the question was put to the jury in proper form by the court.

The question of defendant's negligence was also a proper one for the jury. The freight despatcher gave the signal for the train to back down for the car which deceased was loading, without ascertaining that the lading was completed, and without giving the slightest notice or warning to the persons about the car. It was his duty, I think, to have seen to it, before he ordered the train to be backed down, that the persons engaged in loading were not exposed to injury.

The evidence tended also to show that the train approached without ringing the bell or sounding the whistle, and with force sufficient to drive the standing car back several feet while crushing the deceased between it and the walls of the freight house. The case was not, therefore, one to be taken from the jury on the question of negligence in any of its aspects. The court gave to the jury correct instructions as to the degree of negligence requisite to charge the defendant. It was not necessary that the negligence should be of a character that would render the servants of defendant indictable for crime.

But it is insisted that the contract between the parties, in reference to the use of the car, released the defendant from

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all liability. Two clauses of the contract are relied...

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