49 N.Y. 47, Filer v. New York Cent. R. Co.

Citation:49 N.Y. 47
Case Date:March 26, 1872
Court:New York Court of Appeals

Page 47

49 N.Y. 47

HELEN M. FILER, Respondent,



New York Court of Appeal

March 26, 1872

Argued Feb. 26, 1872.

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George G. Munger for the appellant. The plaintiff was chargeable with such contributory negligence as precludes her from recovery. (Lucas v. Taunton & Bedford R. R. Co., 6 Gray, 64; Hickey v. Boston & Lowell R. R. Co., 14 Allen, 429; Timmons v. Central Ohio R. R. Co., 6 Ohio, 105; Ohio & Mississippi R. R. Co. v. Schiebe, 44 Ill., 460; Penn. R. R. Co. v. Aspell, 23 Penn., 147; The Same v. Kilgore, 32 Id., 292; Davis v. Chicago & N.W. R. R. Co., 18 Wis., 175; C. B. & Q. R. R. Co. v. Hazard, 26 Ill., 373; Shear. & Red. on Negligence, § 281.) The court erred in refusing to charge that if plaintiff had neglected to take reasonable care of herself since the injury, it was to be taken into account by the jury in estimating damages. (Douglas v. Stephens, 18 Mo., 362, 366; Sherman v. Fall River Iron Works, 2 Allen, 524; Thomas v. Kenyon, 1 Daly, 132.)

J. H. Martindale for the respondent. It was the duty of defendant to stop the train at the station. (Story on Bailments, 600.) The question of contributory negligence was one of fact and for the jury. (McIntyre v. N.Y. C. R. R. Co., 37 N.Y. 288, 289; Penn. R. R. Co. v. Kilgore, 32 Penn. R., 292.) A portion of the charge excepted to was clearly proper. A general exception, therefore, must fail. (Haggart et al. v. Morgans, 1 Seld. R., 422; Jones v. Osgood, 2 Id., 233; Hart v. R. & S. R. R. Co., 4 Id., 37; Caldwell v. Murphy, 1 Kern., 416; Walsh v. Kelly, 40 N.Y. R., 557.) It was proper to consider, in estimating damages, plaintiff's disqualifications for labor. (Chap. 70, Laws of 1860, § 7; chap. 172, Laws of 1862.) The question as to the husband's rights not called to the attention of the court, and cannot be raised here. (Magee v. Badger, 34 N.Y. 248.)

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It was submitted to the jury, if they found that the plaintiff was directed by the brakeman to leave the cars or to get off when the cars were in motion, to determine whether under the circumstances there was any such negligence on her part as would preclude her from recovering; the judge having in substance instructed the jury that if a person seeks to recover for injuries resulting from the negligence of another, he must himself be free from any negligence contributing to the injury. The question was put to the jury whether the plaintiff acted as prudent persons generally would have acted under the circumstances, and the charge was that, if she did, that would not bar a recovery.

There is no complaint of the manner in which the question as to the alleged contributory negligence of the plaintiff was submitted to the jury, if there was any question for submission. The claim of the defendant is, that the complaint should have been dismissed, or a verdict ordered against the plaintiff, upon the ground that she was culpably careless and negligent, and by her carelessness and negligence contributed to the injury, and that, there being no dispute as to the facts, the question was one of law for the court and not of fact for the jury.

Ordinarily the question of negligence is one of mixed law and fact, and it is the duty of the court to submit the same to the jury, with proper instructions as to the law. What is proper care is sometimes a question of law, when there is no controversy about the facts; but where there is evidence tending to prove negligence on the part of the defendant, and a question arises whether the plaintiff has by his own fault contributed to the injury, it is ordinarily a question for the jury. If the evidence is of that character that a verdict for the plaintiff would be clearly against evidence, the question is one of law and should be decided by the court.

The fact is undisputed that the...

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