58 N.Y. 56, Sprong v. Boston & Albany Railroad Co.

Citation:58 N.Y. 56
Party Name:EMILIE C. SPRONG, Administratrix, etc., Respondent, v. THE BOSTON AND ALBANY RAILROAD COMPANY, Appellant.
Case Date:June 09, 1874
Court:New York Court of Appeals
 
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58 N.Y. 56

EMILIE C. SPRONG, Administratrix, etc., Respondent,

v.

THE BOSTON AND ALBANY RAILROAD COMPANY, Appellant.

New York Court of Appeal

June 9, 1874

Argued May 27, 1874.

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COUNSEL

George W. Miller for the appellant. Plaintiff's intestate was guilty of contributory negligence, and the motion for nonsuit should have been granted. (49 N.Y. 535.) The court erred in receiving in evidence the opinions of witnesses as to the effect of cold weather upon brakemen upon the top of cars. (Teal v. Barton, 40 Barb., 137; Keller v. N.Y. C. R. R. Co., 24 How., 184.)

Samuel Hand and Matthew Hale for the respondent. Plaintiff's intestate being in the habit of going on the engine with the knowledge of defendant's agents and without objection, his being there was not negligence. (Caldwell v. Murphy, 1 Duer, 233; affirmed, 1 Kern., 416; Willis v. L. I. R. R. Co., 32 Barb., 398; affirmed, 34 N.Y. 670; Clark v. Eighth ave. R. R. Co., 32 Barb., 657; affirmed, 36 N.Y. 135; Colgrove v. N.Y. and H. R. R. Co., 6 Duer, 382; affirmed, 20 N.Y. 492; Messel v. Lynn, etc., R. R. Co., 8 Al., 234; Keith v. Pinkham, 43 Me., 501; Carroll v. N.Y. and N. H. R. R. Co., 1 Duer, 571; Edgerton v. N.Y. and N. H. R. R. Co., 35 Barb., 193; affirmed, 39 N.Y. 227; O'Donnell v. A. V. R. R. Co., 59 Penn. St., 239.) Defendant's negligence having caused the injury, it is not a defence that the negligence of a fellow servant contributed to it. (S. & R. on Neg., § 89; Cagger v. Taylor, 10 Gray, 274.)

ANDREWS, J.

In Flike, Administrator, v. The Boston and Albany Railroad Company (53 N.Y. 549), which was also an action against the defendant in this action to recover

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damages for the defendant's negligence in causing the death of the plaintiff's intestate, a fireman on the same train on which Sprong, the plaintiff's intestate in this action, was, and who was killed by the same collision, two questions, also involved in this case, were decided: First, that the evidence justified the jury in finding that the corporation, defendant, was guilty of negligence in sending out the first train with an insufficient number of brakemen; and, second, that although the co-servants of the deceased may have been guilty of negligence which contributed to produce the injury, that fact did not exempt the defendant from liability, assuming that the jury should find...

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