45 N.Y. 660, Gorton v. Erie Railway Co.

Citation:45 N.Y. 660
Party Name:STEPHEN M. GORTON, Respondent, v. THE ERIE RAILWAY COMPANY, Appellant.
Case Date:June 06, 1871
Court:New York Court of Appeals

Page 660

45 N.Y. 660

STEPHEN M. GORTON, Respondent,



New York Court of Appeal

June 6, 1871

Argued May 29th, 1871.

Page 661


G. M. Diven, for the appellant. On the question of negligence, Ernst v. H. R. R. R. Co. (39 N.Y. 47, 68); Beisiegel v. N.Y. C. R. R. Co. (34 N.Y. 625); Havens v. Erie R. R. Co. (41 N.Y. 298, 299). On the question of intoxication, Ernst v. H. R. R. R. Co. (34 How., 110); 35 N.Y. 21; Button v. H. R. R. R. Co. (18 N.Y. 248); Aqer v. City of Lowell (3 Allen, 402, 406); S. & R. on Negligence, § § 45, 417, note 1.

Brown & Graves, for the respondent. The finding of the jury upon questions of fact is conclusive. (14 N.Y. 310; 13 N.Y. 533; 36 How., 84.) Former declarations must not only relate to the issue, but must be matters of fact, and not merely a former opinion of the witness. (Holmes v. Anderson, 18 Barb., 420; Eltin v. Larkins, 5 Carr. & Payne, 385; 1 Cow. & Hill's Notes, 727, 772; 1 Green. Ev., 586; Teall v. Borden, 40 Barb., 137.) The question of negligence is one for the jury, where there is any conflict of testimony upon that point. (39 N.Y. 68; 37 N.Y. 287; 36 N.Y. 132; 35 N.Y. 10; 13 N.Y. 533; 26 How., 177; 23 How., 168; 36 How., 84; 30 How., 219; 40 Barb., 193; Starker's Ev., 2d vol., 973.) On the question of intoxication, Stark. Ev., 3d vol., 496; Hart v. Newland (3 Hawks., 122, 123); United States v. Jones (1 Wash. C. C. R., 372); Haley v. Earle (30 N.Y. 208);

Page 662

Green. on Ev., 70, § 52; 584, § 448; Phil. & Am. on Ev., 909, 910; 1 E. D. Smith, 271. On the question of the rate of speed, Hosley v. Black (28 N.Y. 438); 26 How., 97; 1 E. D. Smith, 271; Kelsey v. Barney (12 N.Y. 425); Johnson v. Hudson R. R. R. Co. (20 N.Y. 66); affirming S. C. in 6 Duer, 633, and disapproving, Brand v. S. & T. R. R. Co. (8 Barb., 368); Ernst v. H. R. R. R. Co. (39 N.Y. 67); Harty v. C. R. R. Co. (42 N.Y. 472).


At the close of the evidence on the part of the plaintiff, the defendant moved that the plaintiff be nonsuited, upon the ground that he was shown to have been negligent, in approaching as well as in crossing the railroad track; that is, that the plaintiff was not wholly without fault, but that the injury was in part attributable to his own negligence and want of care.

Evidence had been given tending very strongly to show, that as the train of cars approached the road crossing, the bell upon the locomotive was not rung or the whistle sounded, as required by statute, and that no signal of the approaching train was given by the persons in charge. In the absence of proof of any negligence or other fault on the part of the plaintiff contributing to the injury, this would have authorized a verdict for the plaintiff.

The omission to ring the bell, or sound the whistle, or give other signal, to warn persons who might be upon the highway, in the vicinity of the intersection of the railroad track with the public traveled road, of the approach of the train, was, per se, negligent, subjecting the defendant to liability for all damages that might accrue to any one by reason of such omission.

The highway crossed the railroad at an acute angle, and the plaintiff was moving along the road and across the railroad in a...

To continue reading