38 N.Y. 440, Gonzales v. New York and Harlem Railroad Co.

Citation:38 N.Y. 440
Party Name:ELIZABETH GONZALES, Administratrix, etc., Respondent, v. THE NEW YORK AND HARLEM RAILROAD COMPANY, Appellant.
Case Date:September 01, 1868
Court:New York Court of Appeals

Page 440

38 N.Y. 440

ELIZABETH GONZALES, Administratrix, etc., Respondent,



New York Court of Appeal

September 1, 1868

Page 441

[Copyrighted Material Omitted]

Page 442


C. A. Rapallo, for the appellant.

R. W. Van Pelt, for the respondent.


The rules of law, applicable to this case, must be considered as settled, viz.: First, that the parties seeking to recover for injuries occasioned by the negligence of another, must be shown to be free from negligence contributing in any degree to occasion the injury complained of.

Second, that a person attempting to cross the track of a railroad must make use of his ordinary faculties to ascertain if there is danger in the attempt, or he will be held guilty of negligence. Ernst v. The Hudson R. R. R. Co., 36 How. 84; (Wilcox v. The Rome & Watertown R. R. Co., decided at the September Term of this court.)

Third, that the question of negligence, the facts being uncontroverted, is a question of law for the court.

Applying these principles to the uncontroverted facts of this case, and I am constrained to conclude, that the judgment cannot be sustained. The deceased was attempting to cross the west track of the defendant's road at the moment when an express train passed over that track. He had been

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frequently a passenger by the train from which he alighted at the same moment, and lived in sight of the crossing. He must have known that the express train was due at that point within one minute of the time, and, allowing for very slight delay on the part of the accommodation train, that the express train was liable to pass at that very moment. With this knowledge, it was especially his duty to look out for the train before going upon its track. He either did look out for it, or he did not. If he did not, he was guilty of negligence in the omission; if he did, he must have seen the approaching train within a few feet of him, and his attempt to cross in front of it was recklessness. In Ernst v. The Hudson River Railroad Company (supra), WOODRUFF, J., says, "A traveler approaching a railroad track is bound to use his eyes and his ears, so far as there is opportunity, and where, by such use of his senses, he might avoid danger, notwithstanding the neglect to give signals or warning, his omission is concurring negligence, and...

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