36 N.Y. 132, Renwick v. New York Cent. R. Co.

Citation:36 N.Y. 132
Party Name:WILLIAM B. RENWICK et al., Administrators, etc., of Robert Renwick, deceased, Respondents, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.
Case Date:January 01, 1867
Court:New York Court of Appeals
 
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36 N.Y. 132

WILLIAM B. RENWICK et al., Administrators, etc., of Robert Renwick, deceased, Respondents,

v.

THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

New York Court of Appeal

January 1, 1867

COUNSEL

A. P. Lanning, for the appellant.

John H. Reynolds, for the respondents.

PARKER, J.

Upon the question of the defendant's negligence in this case, it is impossible to maintain that there was no conflicting evidence. If no signal was given, from the train, of its approach to the crossing where the injury occurred, either by the ringing of the bell or the sounding of the whistle, the defendants are chargeable with negligence.

Now, upon the question whether the bell was rung or not, it is undeniably true that considerable evidence was given on both sides. On the part of the plaintiff, both he and his daughter swore that they listened for the train as they approached the crossing, and did not hear it. Several witnesses, upon the train, testified that they heard no bell or whistle before the whistle for the brakes at the crossing. Mrs. Thomas, whose house the train passed about fourteen rods before it reached the crossing, swore that there was no signal, either from the bell or whistle; and Mrs. Adams, who was observing the train from the same house, heard none. Sacket, who was at his house, three-quarters of a mile east of the crossing, and one hundred rods from the track, heard the train, but heard no bell or whistle, until the whistle for the brakes. Now, though most of this is negative evidence, and the defendant has, on its side, the positive testimony of five

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witnesses that the bell was rung, still, as some of the plaintiff's witnesses were in a condition to hear it if it had been rung, and were giving their attention to the train, the fact that they did not hear it is evidence conducing to prove that it was not rung. Two of the defendant's witnesses, who swore that it was rung, are the engineer and fireman, who were in fault if it was not rung. The character of one other was impeached. The conflict raises a question of fact, which the plaintiff had the right to have determined by the jury.

There can be no pretense that the plaintiff was so clearly guilty of negligence himself, as to require the court to nonsuit. His own testimony, and that of his daughter, show the exercise of all the prudence which the circumstances required. He...

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