58 N.Y. 451, Weber v. New York Central & Hudson River Railroad Co.

Citation:58 N.Y. 451
Case Date:October 06, 1874
Court:New York Court of Appeals

Page 451

58 N.Y. 451

JOHN J. WEBER, Respondent,



New York Court of Appeal

October 6, 1874

Argued Sept. 25, 1874.

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[Copyrighted Material Omitted]

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A. P. Laning for the appellant. Plaintiff was guilty of contributory negligence. (Gorton v. E. R. Co., 45 N.Y. 660; Davis v. N.Y. C. and H. R. R. R. Co., 47 Id., 400; Baxter v. T. and B. R. R., 41 Id., 502; Havens v. E. R. Co., Id., 296.) The question of negligence was one of law and plaintiff should have been nonsuited. (Gonzales v. N.Y. C. and H. R. R. R. Co., 38 N.Y. 440; Van Schaick v. H. R. R. Co., 43 Id., 527; Davis v. N.Y. C. and H. R. R. R. Co., 47 Id., 400; Morrison v. E. R. Co., Ct. of App., unreported.) The greater the difficulty in avoiding a train and in hearing signals the greater the care and caution required of one crossing. (Skelton v. N.W. R. Co., L. R. [ 2 C. P.], 631.)

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The only question for the jury as to defendant's negligence was, whether it exercised reasonable care in the movement and management of the train. (Griffin v. N.Y. C. R. R. Co., 40 N.Y. 34; Beiseigel v. N.Y. C. R. R. Co., Id., 9, 13, 14.)Defendant was not required to exercise the utmost care or to use all the precautions the highest prudence could suggest which were in its power to apply. (Kelsey v. Barney, 2 Kern., 425.)

George Wadsworth for the respondent. The plaintiff was not guilty of contributory negligence. (Eakin v. Brown, 1 E. D. Smith, 36; Center v. Finney, 17 Barb., 94; Seld. Notes, Nos. 2, 44; Fero v. B. and S. L. R. R. Co., 22 N.Y. 209; Clark v. Kinvan, 4 E. D. Smith, 21; In re The Perin, 13 Am. Law. Reg., 561, 564; Wilds v. H. R. R. Co., 32 Barb., 507; Cook v. N.Y. C. R. R. Co., 3 Trans. Ap., 18.) The question was one of fact for the jury. (Felix v. N.Y. C. R. R., 49 N.Y. 47; Hackford v. N.Y. C. R. R., 53 Id., 654; Eaton v. E. R. Co., 51 Id., 544; Maginnis v. N.Y. C. R. R. Co., 52 Id., 215; Davis v. N.Y. C. and H. R. R. R. Co., 47 Id., 400; Bernhardt v. R. and S. R. R. Co., 23 How., 166; Keller v. N.Y. C. R. R. Co., 24 Id., 172; Renwick v. N.Y. C. R. R., 36 N.Y. 132.) Defendant was guilty of negligence which caused the injury. (McGuire v. H. R. R. R. Co., 2 Daly, 76; Maginnis v. N.Y. C. and H. R. R. R. Co., 52 N.Y. 215; Johnson v. H. R. R. R. Co., 20 Id., 67, 75; Cook v. N.Y. C. R. R. Co., 3 Trans. Ap., 8; Griffin v. N.Y. C. R. R., 40 N.Y. 34, 42.) The charge was proper. (Johnson v. H. R. R. R. Co., 20 N.Y. 67; McKay v. N.Y. C. R. R. Co., 35 Id., 75.)


The defendant seeks a reversal of the judgment in this action: First, because of the refusal of the court to nonsuit the plaintiff upon the ground that his own negligence contributed to the injury; and, second, upon exceptions to the charge to the jury. The duty of every individual using a public highway at railway crossings to exercise that

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degree of care and prudence called for by the peculiar circumstances, and proportioned to the danger of injury from a collision with a passing train of cars--such care and foresight as men of ordinary prudence would use if placed in the same situation--is well understood and authoritatively settled.

This ordinary care involves the vigilant use, by the traveler, of his senses, in approaching the place of danger, and that he should look in every direction from which danger may be apprehended, and, at the same time, attentively listen for any signals or evidences of an approaching train. If there is any omission of duty or precaution in this respect, and he sustains injury to his person or property, caused wholly or in part by such want of care, he must bear the loss, within the well established rule that a plaintiff can only recover in actions upon the case for negligence, when the injury is caused solely by the neglect of the defendant. (Gorton v. Erie Railway Co., 45 N.Y. 660; Davis v. N.Y. C. and H. R. R. R. Co., 47 Id., 400; Baxter v. Troy and Boston R. R. Co., 41 Id., 502.)

If negligence of the plaintiff in such action, contributing to the injury, clearly appears from all the circumstances, or is established by uncontroverted evidence, it is the duty of the court to take the case from the jury and nonsuit the plaintiff. But if a finding by the jury that the plaintiff was free from the charge of negligence could not be set aside as wholly unsupported by evidence, although the evidence might be slight, and the question doubtful, a nonsuit would be improper. The rule is well expressed by Judge SELDEN in Bernhard v. Rensselaer and Saratoga R. R. Co. (1 Abb. Ct. of App. Decisions, 131): "If there is any conflict in the evidence going to establish any of the circumstances upon which the question depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in most cases it is, what a man of ordinary care and prudence would be likely to do under the circumstances proved, this, involving as it

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generally must more or less of conjecture, can only be settled by a jury."

At the point at which the plaintiff received the injuries complained of, the street, a public thoroughfare in the city of Buffalo, was crossed by seven tracks of the defendant's railway, over which the cars of the defendant were frequently passing, not only in the ordinary traffic of the road, but in making up and dispatching freight trains. The plaintiff was familiar with the locality and the general use made by the defendant of the tracks there laid. A flagman was kept at the crossing during the day, but was withdrawn every day at evening. [a1]

It is true that the vigilance and caution of the traveler must be proportioned to the known danger of injury, but it is also in a measure limited by the usual and ordinary signals and evidences of danger. The natural instinct of self-preservation ordinarily will lead to the employment of all the precautions which the situation suggests to an individual in danger of harm, and whether they are such as would occur to and be adopted by men of ordinary care and prudence must necessarily, in most cases, be a question for the jury. The intelligence and judgment as well as the experience of twelve men must settle a question of that character as one of fact and not of law. It may be conceded in this, as has been said in other cases of like character, that this branch of the case is not free from difficulty, and it may be that the freedom of the plaintiff from all negligence is not so entirely satisfactory as to place the question beyond all doubt, but in my judgment it presented a fair question for the jury. In the determination of that question all the circumstances were to be considered, the darkness of the night, the condition of the street with its seven railroad crossings, the obstructions of the view to the north, in whole or in part, by the defendant's cars upon the western tracks, the manner of the approach of

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the moving train, backing and not advancing, the slow rate of speed and consequent comparative noiselessness of its approach, the difficulty in distinguishing objects and their relation to each other in the darkness of the evening, and the jury was the proper...

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