58 N.Y. 451, Weber v. New York Central & Hudson River Railroad Co.
|Citation:||58 N.Y. 451|
|Party Name:||JOHN J. WEBER, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.|
|Case Date:||October 06, 1874|
|Court:||New York Court of Appeals|
Argued Sept. 25, 1874.
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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.)
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
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...
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