39 N.Y. 61, Ernst v. Hudson River R. Co.

Citation:39 N.Y. 61
Party Name:MARTHA ERNST, Executrix, etc., Appellant, v. THE HUDSON RIVER RAILROAD COMPANY, Respondent.
Case Date:March 01, 1868
Court:New York Court of Appeals
 
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39 N.Y. 61

MARTHA ERNST, Executrix, etc., Appellant,

v.

THE HUDSON RIVER RAILROAD COMPANY, Respondent.

New York Court of Appeal

March 1, 1868

CLERKE, J.

This action was brought to recover damages against the defendant for negligently causing the death of the plaintiff's testator, and has been tried four times. Upon the first trial, the plaintiff was nonsuited; a new trial having been granted, the cause was tried a second time, and the plaintiff recovered $2, 500, upon which judgment was entered. This was reversed in the Court of Appeals, and a new trial ordered. On the third trial, the plaintiff was nonsuited in accordance with the decision of this court. This was affirmed at the General Term; but, on a second appeal to this court, the judgment of the Supreme Court was reversed, and a new trial ordered. On the fourth trial, the plaintiff had a verdict for $5, 000. The judgment upon this verdict having been affirmed at the General Term, the defendant appeals to this court.

The judge at the trial charged the jury, that the first question which they were to consider was, whether the defendant

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was guilty of negligence which caused the death of the plaintiff's testator. On this question there was conflicting evidence. The plaintiff's witnesses, and some of the defendant's, testified, that they did not hear the bell or whistle, previous to the accident; while the engineer, fireman, and track master, testified, that these signals were given. So that this question, relative to the defendant's negligence, was properly left to the jury. The judge added, if they should come to the conclusion, that the defendant was guilty of negligence, then the question would be, was the deceased free from negligence which contributed to the accident? The defendant's counsel asked the court to charge, if the deceased, by the use of his ordinary faculties, could have discovered the train, and could have avoided the injury, he was guilty of negligence, and could not recover; and this the court accordingly charged.

The counsel for the defendant moved, at the conclusion of the plaintiff's evidence, for a nonsuit, on the ground--first, that there was no proof of negligence on the part of the defendant; and, second, that it appeared that the negligence, or want of care, of the plaintiff's testator, contributed to the injury. The motion was denied. It was, however, renewed at the close of the whole evidence, and was then, also, denied. As I have already intimated, there can be no doubt, that the question regarding the defendant's negligence was properly left to the jury. The second ground of the motion for the nonsuit is more plausible. On the legal proposition which this latter question involves, I cannot discover any difference of opinion between any of the judges by whom the case has been considered. All seemed to assume, at the trial at the General Term, and in the Court of Appeals, that the plaintiff must make out a clear, affirmative case of negligence on the part of the defendant, unaccompanied by any negligence on the part of the deceased, that contributed to the injury; and the question now is, was the negligence of the deceased so obvious and uncontradicted by the evidence, as that nothing was left on this point for the consideration of the jury? I cannot find any substantial difference in the evidence

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bearing on this point adduced at the trial before the last, and the evidence adduced at the last trial. There were some more witnesses examined on behalf of the defendant; their evidence, perhaps, tended to contradict that of the plaintiff; but by no means made it more manifest that the judge should have nonsuited the plaintiff on the ground of the uncontradicted negligence of the deceased.

At the last trial, all the facts were proved, which were proved at the one that preceded it; and these were very...

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