52 N.Y. 215, Maginnis v. New York Cent. & H.R.R. Co.

Citation:52 N.Y. 215
Party Name:JOHN MAGINNIS, Administrator, etc., Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.
Case Date:February 11, 1873
Court:New York Court of Appeals
 
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52 N.Y. 215

JOHN MAGINNIS, Administrator, etc., Appellant,

v.

THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

New York Court of Appeal

February 11, 1873

Argued Feb. 4, 1873.

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COUNSEL

Amasa J. Parker for the appellant. Defendant cannot avail himself of a previous motion for a nonsuit, if he afterward furnishes evidence which supplies the alleged defect. ( Bullard v. Lockwood, 1 Daly, 158.)

Samuel Hand for the respondent. Plaintiff was guilty of negligence in omitting to look before going on the track. ( Gorton v. Erie Railway, 45 N.Y. 100; Wilcox v. R. W. and O. R. R., 39 Id., 358; Beisiegel v. N.Y. C. R. R., 40 Id., 21; Grippen v. H. R. R. R., 40 Id., 34; Havens v. Erie Railway, 41 Id., 296; Baxter v. T. and B. R. R., Id., 502; Harty v. Cent. R. R. of N. J., 42 Id., 468, 473; Penn. R. R. v. Goodman, 62 Penn., 329; Stubley v. L. and N.W. R. [ L. R.], 1 Exch., 13; Skelton v. Same [L. R.], 2 C. P., 631; Siner v. G. W. R. [ L. R.], 4 Exch., 117.) It was entirely immaterial whether there was a light on the end of the rear car. ( Stebes v. Oswego R. R., 18 N.Y. 422; Galena R Co. v. Loomis, 13 Ill., 548.) Defendant was only bound to have a bell on the locomotive. ( Grippen v. N.Y. Cent., 40 N.Y. 34.) The failure to ring the bell could by no possibility have contributed to the disaster. (Chap. 282, Laws of 1854, § 7.)

Per CURIAM.

When this case was before this court the first time, the judgment was reversed and a new trial granted for an error of the judge, in refusing to charge as requested upon a point not now material to be noticed; but we thought that the evidence was sufficient to go to the jury under the circumstances, and that the refusal to nonsuit was not error. The theory of liability was that if the train had stopped, or so nearly stopped as to appear to be standing still, it was not

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negligence for the deceased to cross the street; and that starting the cars in a backward motion from an actual or apparent rest, without proper signal or warning, was sufficient for the jury to predicate negligence of defendants as the cause of the injury. The last trial did not develop such a change of facts as to require a different decision. There was no fact established from which, as matter of law, we can impute negligence to the intestate, or which absolutely relieves the defendant from the imputation of negligence.

The most that can be said is that the case of the plaintiff, which was not strong before, is a shade weaker now. The train did not probably come to a dead stop; but it might be inferred that it was at the point of stopping, and that the intestate, in looking at it, was justified in supposing it to be standing still, and, consequently, justified in crossing the street; and that, although there was no great suddenness to the motion, it was accelerated in order to pass Quackenbush street; and that the absence of a visible light, or other means of warning, at the rear end of the train while being backed through a public street of the city, constituted a sufficient fault on the part of the company to render them liable for the injury. We think the previous decision of the court requires us to hold that the refusal to nonsuit was not error.

We must, therefore, consider whether any error was committed by the judge in the refusals to charge as requested. The propositions contained in the first and second requests were charged as requested. They embrace the proper instructions as to the negligence of the deceased, and are, in substance, that if the deceased saw the train approaching, or failed to look in order to see if the train was coming, she was guilty of negligence and the plaintiff could not recover. The third request was that if the jury believed that deceased could, before going on the track, have seen the approaching train by looking, then her being on the track where the train hit her, under the circumstances of the case, was conclusive evidence of contributory negligence, and the plaintiff could not recover. The judge said at first "I so charge; " and then

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added, "I charge, not that it is negligence, but evidence of negligence. I decline to charge that it is conclusive evidence. I will say it is high evidence." The...

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