32 N.Y. 597, Brown v. New York Cent. Railroad Co.

Citation:32 N.Y. 597
Party Name:FRANCES A. BROWN, by her next friend, Respondent, v. THE NEW YORK CENTRAL RAILROAD, Appellant.
Case Date:June 01, 1865
Court:New York Court of Appeals
 
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Page 597

32 N.Y. 597

FRANCES A. BROWN, by her next friend, Respondent,

v.

THE NEW YORK CENTRAL RAILROAD, Appellant.

New York Court of Appeal

June 1, 1865

Page 598

[Copyrighted Material Omitted]

Page 599

COUNSEL

Strong & Mumford, for the appellant.

J. H. Martindale, for the respondent.

1. The evidence in this case discloses great negligence on the part of defendant's agents on the occasion in question.

The question is whether the court shall adjudge, as a matter of law, that in such a locality it is safe and proper to make "a running switch, " that is, to divide the train into

Page 600

three parts, the two rear parts being propelled by their own momentum, at the rate of twelve miles per hour, without any signals of any kind; this occurring in a densely settled part of a village of 3, 000 inhabitants.

2. Thomas, the stage driver, was without fault. He used care enough to avoid the imputation of negligence. But whether so or not, the question is one of law and fact, if not of fact alone, and properly submitted to the jury.

3. But the plaintiff is not legally chargeable with any negligence imputed to Thomas, the driver. His employment was in its nature public, and his negligence could not be imputed to the plaintiff. He was not, in any sense, subject to her control. (See Colgrove v. New York & New Haven Railroad Company, 20 N.Y., 492; Chapman v. Same, 19 N.Y. 341.)

4. The testimony showing the nature and extent of the injury was competent; and whether the injury was curable or not, the damages were inadequate. (See Caldwell v. Murphy, 11 N.Y. 419.)

DAVIS, J.

It is insisted by appellant that there was no evidence of negligence on its part which contributed to produce the collision; and that the court erred at the trial in denying the motion for nonsuit on that ground, and in submitting the question of defendant's negligence to the jury. On this question the point submitted to the jury was, whether the defendant exercised its right of making a running switch, at a proper place and with the use of due care. The place was certainly one demanding great caution. The crossing was over the street of a populous village where travelers were constantly passing. The view of approaching trains was, in a great degree, cut off by obstacles on the side of the street and along the line of the railroad. The act of making a "running switch"...

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