47 N.Y. 400, Davis v. New York Cent. & H.R.R. Co.

Citation:47 N.Y. 400
Party Name:WALTER D. DAVIS et al., Executors, Respondents, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
Case Date:January 30, 1872
Court:New York Court of Appeals

Page 400

47 N.Y. 400

WALTER D. DAVIS et al., Executors, Respondents,



New York Court of Appeal

January 30, 1872

Argued Jan. 22, 1872.


A. P. Laning for appellant. The question of negligence, the facts being uncontroverted, is a question of law for the court. ( Gonzales, Adm'r, v. The N.Y. and H. R. Co., 38 N.Y. 440; Van Schaick, Ex'r, etc., v. The H. R. R. Co., 43 N.Y. 527.)

Page 401

Defendant's negligence did not excuse the plaintiffs' intestate from using his ordinary faculties to observe the approach of the train, and a failure so to do constitutes negligence, which will prevent a recovery. ( Baxter v. The Troy and Boston R. Co., 41 N.Y. 502; Ernst v. The H. R. R. Co., 39 N.Y. 61; Wilcox v. The R., W. & O. R. R. Co., 39 N.Y. 358.)The plaintiffs were bound to establish affirmatively, by satisfactory evidence, that their intestate did not contribute to the injury by any negligence on his part. ( Warner v. The New York Central and Hudson River Railroad Co., 44 N.Y. 465.) If the injured party, by looking up the track in the direction of the approaching train, would have seen it in time to avoid the injury, it will be presumed that he did not look, and his omission to do so is negligence. ( Wilcox, Adm'r, v. The R., W. and O. R. Co., 39 N.Y. 358; Griffin v. The N.Y. C. R. R. Co., 40 N.Y. 34.)

J. H. Martindale for respondents. Defendant, having neglected to give the statutory warning, deceased is not chargeable with contributory negligence, even if he acted wildly, insanely, in the place of peril. ( Stokes v. Saltenstall, 13 Peters, 181; Buel v. N.Y. C. R. R. Co., 31 N.Y. 31.)


To entitle the plaintiffs to go to the jury, the evidence must have been such as to make the questions, whether the injury received by their testator was the result of the negligence of the defendant, and whether he was free from any negligence contributing thereto, proper for their determination. No question is made by the counsel for the appellant but that the first was such. The point made relates to the second. Upon this the difference between the counsel is not as to the law respecting the degree of care incumbent upon the testator to protect himself from injury in crossing the defendant's track, but in its application to the testimony given in the case. The law required...

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