63 N.Y. 522, McGrath v. New York Cent. & H.R.R. Co.
|Citation:||63 N.Y. 522|
|Party Name:||HENRY MCGRATH, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.|
|Case Date:||January 18, 1876|
|Court:||New York Court of Appeals|
Argued Nov. 30, 1875.
Amasa J. Parker for the appellant. It was error to exclude evidence of the established practice of keeping a flagman at the crossing, and of his absence at the time of
the injury. (Ernst v. H. R. R. R. Co., 39 N.Y. 61; Grippen v. N.Y. C. R. R. Co., 40 Id., 45; Beisiegel v. N.Y. C. R. R. Co., 14 Abb. [N. S.], 29; Teller v. N.Y. C. R. R. Co., 2 Abb. Ct. App. Dec., 458; 111 Mass., 136; Parker v. R. and S. R. R. Co., 15 Barb., 315; 1 Redf. on Railways, 618, § 142, note 8; Id., 571, note 8; 2 Id., 303, sub. 5, 5th ed.; Tracy v. T. and B. R. R. Co., 38 N.Y. 433; Clement v. Canfield, 28 Vt., 302; 55 Barb., 529; Burchfield v. No. C. Co., 57 Id., 589; Webb v. Portland Co., 57 Me., 117, 135; 28 Vt., 302; M. Cent. Co. v. Kanouse, 39 Ill., 272; Allyn v. B. and A. R. R. Co., 105 Mass., 77; Barrett v. Third Ave. R. R. Co., 45 N.Y. 528; Webster v. H. R. R. R. Co., 38 Id., 260; Carpenter v. Cent. Park R. R. Co., 11 Abb. [ N. S.], 416.)
Samuel Hand for the respondent. Evidence as to the custom of keeping a flagman at the crossing and his absence on this occasion, and as to the city ordinance in relation to a flagman, was properly excluded. (1 T. & C., 243, 246; Gorton's Case, 45 N.Y. 660; McCall Case, 54 Id., 61; Weber Case, 58 Id., 451; Baxter Case, 41 Id., 302; Haven's Case, Id., 296; Weber v. N.Y. C. R. R. Co., 58 Id., 458, 460; Beisiegel v. N.Y. C. R. R. Co., 40 Id., 9; Grippen v. N.Y. C. R. R. Co., Id., 34; Schwartz v. H. R. R. R. Co., 4 Robt., 347.)
Upon the first trial of this action, it was shown that the Rensselaer and Saratoga Railroad Company had always kept a flagman at the crossing where the accident under consideration happened, but that he was absent at the time of the accident; and the court charged the jury that these facts might be considered by them upon the question of defendant's negligence. Upon appeal to the General Term, this charge was held to have been erroneous, and a new trial was granted. (1 S. C. [ T. & C.], 243.) Upon the new trial, the plaintiff, against the objection of the defendant, was permitted to prove the same facts upon the question of the
plaintiff's negligence. The plaintiff recovered, and upon appeal to the General Term, the evidence thus given was held to be competent. But upon appeal to this court, it was held to be incompetent for the purpose for which it was received, and a new trial was granted. [a1] Upon the third trial, the plaintiff offered again to prove the same facts, and, generally, that there was no flagman at the crossing at the time of the accident, and this evidence was excluded. The main question for our consideration upon this appeal is, whether this evidence was competent for any purpose. The sole question decided upon the former appeal to this court was, that the evidence was not competent upon the question of the plaintiffs negligence. That decision proceeded upon the ground that no negligence or omission of duty upon the part of the defendant could absolve the plaintiff from the duty of using his senses to avoid the danger. The question whether such evidence was competent, as bearing upon the defendant's negligence, was not then before this court, and was not decided; and I believe the question has never yet been decided by this court. So far as I can discover, there is no reported case in which such evidence has been excluded. The evidence has been received, and the question of its effect has been raised upon the charge to the jury. In the case of Biesiegel v. The New York...
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